1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0014P (6th Cir.)File Name: 00a0014p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________ROYALE.CLAYBROOK,JR.,GWANNETTECLAYBROOK,PETRECECLAYBROOK,COADMINISTRATORS OF THEESTATE OFROYALCLAYBROOK,SR., andQUINTANACLAYBROOK,Plaintiffs-Appellants,v.JESSEBIRCHWELL,STEVELEWIS,KENSPENCER,ROBERTKIRCHNER, andMETROPOLITANGOVERNMENT OFNASHVILLE&DAVIDSONCOUNTY,Defendants-Appellees.;>1No. 98-6029Appeal from the United States District Courtfor the Middle District of Tennessee at Nashville.No. 96-00157—John T. Nixon, District Judge.Argued: August 10, 1999Decided and Filed: January 11, 20002Claybrook, et al. v. Birchwell, et al.No. 98-60291The district court cast its ruling as an alternate dismissal of thecomplaint for failure to state a claim and/or summary judgment adverseto the plaintiffs."Whether a district court has correctly dismissed a suit pursuant toFed. R. Civ. P. 12(b)(6) [failure to state a claim] is a question of law, andtherefore subject tode novoreview. The district court must construe theBefore: KRUPANSKY, BOGGS, and CLAY, CircuitJudges._________________COUNSELARGUED:E. E. Edwards III, EDWARDS, SIMMONS &OLIVER, Nashville, Tennessee, for Appellants. KennethaSawyers, THE METROPOLITAN GOVERNMENT OFNASHVILLE & DAVIDSON COUNTY DEPARTMENT OFLAW, Nashville, Tennessee, for Appellees.ON BRIEF:E.E. Edwards III, Wesley M. Oliver, EDWARDS, SIMMONS& OLIVER, Nashville, Tennessee, for Appellants. KennethaSawyers, THE METROPOLITAN GOVERNMENT OFNASHVILLE & DAVIDSON COUNTY DEPARTMENT OFLAW, Nashville, Tennessee, for Appellees.KRUPANSKY, J., delivered the opinion of the court, inwhich BOGGS, J., joined. CLAY, J. (pp. 19-23), delivereda separate opinion concurring in part and dissenting in part._________________OPINION_________________KRUPANSKY, Circuit Judge. The plaintiffs-appellantsRoyal E. Claybrook Jr. (“Royal Jr.”), Gwannette Claybrook(“Gwannette”), Petrece Claybrook (“Petrece”), and QuintanaClaybrook (“Quintana”) have disputed the district court’sdismissal of their complaint for failure to state a claim, and/orits award of summary judgment to the defendants,1against theNo. 98-6029Claybrook, et al. v. Birchwell, et al.23and Four of the complaint. I would also reinstate thesupplemental state law claims.22Claybrook, et al. v. Birchwell, et al.No. 98-6029officers when Mr. Claybrook refused to throw down his gun,as opposed to firing at him. Indeed, the officers testified thatthey attempted to pull out their badges only “during thegunfire,” or after the gunfire had already begun. Notably,there were no emergency circumstances present so as torequire the officers to begin shooting without followingprotocol and without making a reasoned decision as towhether the vehicle was occupied. Accordingly, under thesecircumstances, a jury should decide whether the officers actedwith deliberate indifference to Ms. Claybrook’s rights.SeeLewis,118 S. Ct. at 1719 (noting the instances of “deliberateindifference” could be found in the context of pretrial custodywhere “forethought about an inmate’s welfare is not onlyfeasible but obligatory under a regime that incapacitates aprisoner to exercise ordinary responsibility for his ownwelfare”);see alsoStemler v. City of Florence,126 F.3d 856,868 (6th Cir. 1997) (suggesting that under substantive dueprocess, “‘a duty to protect can arise in a noncustodial settingif the state does anything to render an individual morevulnerable to danger’”) (quotingGazette v. City of Pontiac,41 F.3d 1061, 1065 (6th Cir. 1994)). Reasonable mindssurely could differ as to whether the plainclothes officers’decision to open fire on Mr. Claybrook at nine o’clock in theevening outside of a market in an area where patrons of thestore could have been seated in their vehicles, when theofficers admitted that they did not feel that they were inimminent danger, rose to the level of deliberate indifferenceto Ms. Claybrook’s rights. Indeed, a reasonable person couldconclude that officers who open fire on a public street at nineo’clock in the evening when they are in no imminent dangerhave every reason to believe that they may recklessly injuremembers of the public. Under the facts presented by thiscase, Ms. Claybrook should not be deprived of her right totrial on the question of whether the circumstances of theshooting violated her substantive due process rights.Accordingly, I would reverse the district court’s dismissalof Ms. Claybrook’s claim against the officers for violation ofher substantive due process rights as set forth in Counts ThreeNo. 98-6029Claybrook, et al. v. Birchwell, et al.3complaint in a light most favorable to the plaintiff, accept all of the factualallegations as true, and determine whether the plaintiff undoubtedly canprove no set of factsin support of his claims that would entitle him torelief. When an allegation is capable of more than one inference, it mustbe construed in the plaintiff's favor."Columbia Natural Resources, Inc.v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted).Although the complaint’s allegations are construed liberally for theplaintiff, a complaint which does not contain allegations sufficient tosupport a claim underanylegal theory must be dismissed.Id. A court isnot bound to accept allegedlegal conclusions or unwarranted factualinferences.Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).Following adequate opportunities for discovery and upon adversarialmotion, summary judgment under Fed. R. Civ. P. 56 must be enteredagainst a plaintiff who has failed to produce evidence sufficient to supporteach element of his or herprima faciecase.Celotex Corp. v. Catrett, 477U.S. 317, 322-23 (1986). Because sufficiency of the evidence is aquestion of law, a trial court’s grant of summary judgment, like adismissal under Fed. R. Civ. P. 12(b)(6), is subject to plenary scrutiny.Painter v. Robertson, 185 F.3d 557, 566 (6th Cir. 1999);Grider v.Abramson, 180 F.3d 739, 756 n.7 (6th Cir.),cert. denied, 120 S. Ct. 528(1999).2Section 1983 provides, in pertinent segment:Every person who, under color of any statute, ordinance,regulation, custom, or usage, of any State . . . subjects, or causesto be subjected, any citizen of the United States or other personwithin the jurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by the Constitution and laws,shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress[.]In any action under section 1983, the plaintiff must prove that (1) hehas been deprived of a right secured by the United States constitution ordefendants-appellees Jesse Birchwell (“Birchwell”), SteveLewis (“Lewis”), Ken Spencer (“Spencer”), Robert Kirchner(“Kirchner”), and the Metropolitan Government of Nashvilleand Davidson County, Tennessee (“Nashville”). Theplaintiffs have alleged that peace officers Birchwell, Lewis,and Spencer used excessive force, in violation of 42 U.S.C.§ 1983,2which resulted in the death of Royal Claybrook Sr.4Claybrook, et al. v. Birchwell, et al.No. 98-6029laws, (2) the defendants who allegedly caused that deprivation actedunder color of state law, and (3) the deprivation occurred without dueprocess of law.O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6thCir. 1994).(“Claybrook”) and the serious bodily injury of QuintanaClaybrook. They further contended that Kirchner, as theChief Executive Officer of the Nashville-Davidson CountyMetropolitan Police Department, failed to properly trainand/or supervise the three faulted field officers, and neglectedto develop appropriate official departmental guidelinesrestraining the unjustifiable utilization of lethal force. Thetrial court concluded that (1) Royal Jr., Gwannette, andPetrece Claybrook (the children of Royal Sr.) lacked standingto recover for alleged personal losses derivatively generatedby their father’s violent demise, and had failed to seekrecovery for Claybrook’s alleged constitutional injuries asrepresentatives oft hisestate; and (2) Quintana had sufferedno cognizable constitutional tort.On the evening of February 28, 1995, plainclothescaucasian undercover police officers Birchwell, Lewis, andSpencer of the Nashville Crime Suppression Unit wereengaged in anti-crime surveillance, from an unmarked squadvehicle, in a high-crime Nashville neighborhood. Atapproximately 9:11 p.m., they observed an African-Americanmale (later identified as Royal Claybrook Sr.) standing nearthe street curb in the dimly-lit parking lot of the F & J Market(“the market”) while displaying a long gun at port-arms. Agray Maxima automobile blocked the business’ entrance. Thepatrolmen knew that the market had been the target of recentcrimes. Suspecting that a robbery was in progress, the driverof the incognito patrol car, Officer Birchwell, in conformitywith his department’s standard operating procedures, radioedthe police force headquarters to report the gunman’s locationand to request the immediate dispatch of a marked policecruiser containing uniformed law enforcers.Birchwell then drove the undercover vehicle into themarket’s parking lot. He intended to stop his vehicle on whatNo. 98-6029Claybrook, et al. v. Birchwell, et al.21department rules requiring them to radio for a marked car anduniformed officers, and they made a conscious decision torequest such support. The officers were also aware that thedepartment rules mandated that they refrain frominvestigating the situation unless emergency circumstancesarose. Significantly, at the point when they discovered Mr.Claybrook standing outside with this gun, Officer Birchwelltestified that he did not believe that the officers were inimminent danger or that exigent circumstances requiring theuse of force existed. However, after having made a decisionto request backup, the officers inexplicably proceeded toengage Mr. Claybrook in a violent confrontation withoutawaiting the arrival of the uniformed officers. Contrary to themajority’s assertion, the officers here were hardly involved ina high-speed pursuit or any high-pressure confrontation at thetime that they decided to act, as were the officers inLewis.See118 S. Ct. at 1720-21. As such, Ms. Claybook’s claimsshould be analyzed using the “deliberate indifference”standard; which is to say, her claim should be viewed in thecontext of whether the officers had time to make a reasonedjudgment about their conduct.Id.;see Moreland v. Las VegasMetro. Police Dep’t,159 F.3d 365, 373 (9th Cir. 1998)(recognizing that the critical question when applying theappropriate standard of culpability underLewisis “whetherthe circumstances allowed the state actors time to fullyconsider the potential consequences of their conduct”).When viewing the officers’ actions under this standard,questions of fact remain for the jury to decide with respect towhether the officers’ conduct violated Ms. Claybrook’ssubstantive due process rights. For example, questions of factexist as to whether the officers observed Ms. Claybrook enterthe car or reasonably should have known that Ms. Claybrookwas in the car, in that if the officers passed by the market atthe time they claimed, a reasonable person could believe thatthey observed Ms. Claybrook leaving the market and enteringthe car. Furthermore, a question of fact exists as to whetherthe officers should have provoked the confrontation with Mr.Claybrook before the uniformed back-up officers arrived, andwhether they should have identified themselves as police20Claybrook, et al. v. Birchwell, et al.No. 98-6029InLewis,the Supreme Court reviewed the range of conductunder which a substantive due process claim may arise underthe Fourteenth Amendment.See118 S. Ct. at 1717. TheCourt began by reiterating the long-held standard that onemay state a claim of deprivation of substantive due process byalleging conduct “‘that shocks the conscience’ and violatesthe ‘decencies of civilized conduct.’”Id.(quotingRochin v.California,342 U.S. 165, 172-73 (1965)). However, theCourt went on to recognize that the measure of “what isconscience-shocking is no calibrated yard stick,” andobserved that “[r]ules of due process are not . . . subject tomechanical application [such that] [d]eliberate indifferencethat shocks in one environment may not be so patentlyegregious in another, and our concern with preserving theconstitutional proportions of substantive due process demandsan exact analysis of circumstances before any abuse of poweris condemned as conscience-shocking.”Id.at 1717-1719.The Court emphasized that liability may lie for actions thatamount to “deliberate indifference” where the officialsinvolved enjoyed the luxury of “time to make unhurriedjudgments, upon the chance for repeated reflection, largelyuncomplicated by the pulls of competing obligations.”Lewis,118 S. Ct. at 1720. The Court explained as follows:When such extended opportunities to do better areteamed with protracted failure even to care, indifferenceis truly shocking. But when unforeseen circumstancesdemand an officer’s instant judgment, even precipitaterecklessness, fails to inch close enough to harmfulpurpose to spark the shock that implicates “the largeconcerns of the governors and the governed.”Id.(quotingDaniels v. Williams,474 U.S. 327, 332 (1986)).When conducting an “exact analysis” of the facts of thiscase in the light most favorable to Ms. Claybrook, it is clearthat the officers had sufficient time to make an unhurriedjudgment about their conduct upon seeing Mr. Claybrookwith his weapon such that a lower level of fault should beapplied. As the officers testified, they were aware ofNo. 98-6029Claybrook, et al. v. Birchwell, et al.5appeared to be a driveway or alleyway which abutted thebuilding’s western side, to enable the officers tosurreptitiously observe the firearm-toting suspect and thesuspicious gray automobile, pending arrival of the summonedmarked squad car. However, Birchwell subsequentlydiscovered that no contiguous roadway paralleled thestructure’s west end. Consequently, while repositioning hisvehicle to prevent the armed suspect from facing the officers’backs, Birchwell maneuvered the unidentified patrol cartowards the stationary gray automobile.That movement prompted the wary gunman to advancemenacingly behind the hood of the gray Maxima while facingthe intruders. Unbeknownst to the peace officers,Claybrook’s daughter-in-law, Quintana Claybrook, worked atthe market. Because that establishment served as a “front” foran unlawful “numbers” gambling operation, thievesoccasionally targeted it. Quintana was responsible fordepositing illegal betting proceeds. The associated physicaldanger prompted Claybrook habitually to escort Quintana,while armed, from the store to her automobile. Hecustomarily remained in the parking lot, holding his shotgunin plain view, until Quintana had exited the area. Claybrookwas acting as a security guard for his daughter-in-law on theevening of February 28, 1995. When the unmarked policevehicle arrived at the scene, Quintana was already inside theMaxima, seated behind the steering wheel with her backtowards the three defendant peace constables, although eachof them testified that he did not know that anyone thenoccupied that automobile.Quintana testified that a passenger within the strangevehicle (the unmarked police car) ordered Claybrook to drophis weapon, to which he responded, “no, you drop your gun.”She further attested:And then the next thing I know, I heard like afirecracker sound, and then I felt something in my back,and I kind of jumped, like, you know. And I really didn’t6Claybrook, et al. v. Birchwell, et al.No. 98-60293Birchwell testified that "it's very easy to distinguish a pistol shotfrom a shotgun. A pistol shot is sort of like a firecracker," while "ashotgun is a deep, low boom."know what had happened, because, you know, I hadn’theard a gun shot, you know, before.And then I kind of felt like I was wet, and so I kind offelt, and I was like, you know, -- and then I realized thatI had been shot. And I kind of leaned over in the seat,and I looked up at my father-in-law, and he looked at me.He was still standing in front of my car.And then I just -- you know, I saw like -- I guess it wasa burst of fire or something. I don’t know what it was.It was just like some fire or something. And I heard a bigboom. And then I just heard a whole bunch of justfireworks and, you know. And then I heard anotherboom.3And I was like, we're getting robbed.Somebody's robbing us.Tragically, Quintana’s back had been struck by a straybullet. She testified that she unsuccessfully attempted totelephone “911" on her cellular phone. She then called herhusband, Royal Jr., to report that armed assailants wereattempting to rob her and Claybrook. However, because shecrouched inside her vehicle following the initial volley, shedid not witness the shoot-out.During much of the ensuing firefight, Claybrook shieldedhimself behind the Maxima. Rounds discharged byClaybrook struck the windshield, hood, and door of theofficers’ cruiser. The three police officers testified, contraryto Quintana’s assertion, that Claybrook discharged his firearmat least twice before they were able to return the assailant’sfire. They further asserted that, following the initial exchangeof gunfire, they endeavored to identify themselves as policeofficers by verbalizations reinforced by manual displays oftheir official badges which each wore on a neck chain.Nevertheless, Claybrook continued to shoot at them. OfficerNo. 98-6029Claybrook, et al. v. Birchwell, et al.19______________________________________________CONCURRING IN PART, DISSENTING IN PART______________________________________________CLAY, Circuit Judge, concurring in part and dissenting inpart. I concur in the majority’s decision to reverse the districtcourt’s dismissal of Counts One and Two of the complaint;however, because I believe that the district court’s dismissalof Counts Three and Four should also be reversed, Irespectfully dissent from the majority’s decision to affirm thedismissal of these counts.I disagree with the majority’s application of what itconsiders to be the appropriate standard under which thesubstantive due process claim of Quintana Claybrook (“Ms.Claybrook”), as set forth in Counts Three and Four, should beanalyzed. The majority applies the “conscious shocking”standard used for situations involving instances when policeofficers are called to make “fast action[s]” such as whenfacing an ensuing prison riot or when in the throes of a highspeed chase. Under such circumstances, a much higherstandard of fault, such as “‘whether force was applied in agood faith effort to maintain or restore discipline ormaliciously and sadistically for the very purpose of causingharm,’” must be shown in order to hold a police officer liable.See County of Sacramento v. Lewis,523 U.S. 833, 118 S. Ct.1708, 1720 (1998) (quotingWitley v. Albers,475 U.S. 312,320 (1986)). Because the record does not support themajority’s application of this standard, the less stringentstandard of culpability – that which is considered “somethingmore than negligence but less than intentional conduct, suchas recklessness or gross negligence” – should be applied.SeeLewis,118 S. Ct. at 1718 (internal quotation marks omitted).Under this standard, coined by the Supreme Court as“deliberate indifference,” a question of fact remains for trialas to whether the officers’ conduct regarding Ms. Claybrookrose to this level.18Claybrook, et al. v. Birchwell, et al.No. 98-6029Furthermore, because the charged official conduct did notinflict any constitutional deprivation upon Quintana,defendant Kirchner, in his official capacity as the ChiefExecutive Officer of the Nashville-Davidson CountyMetropolitan Police Department, cannot be liable to her forany alleged neglect to train or supervise those officers, orfailure to develop appropriate deadly force policies; thereforethe lower court’s summary dismissal of count four was alsoproper.City of Los Angeles v. Heller, 475 U.S. 796, 799(1986) (per curiam) (“If a person has suffered noconstitutional injury at the hands of the individual policeofficer, the fact that the departmental regulations might haveauthorizedthe use of unconstitutionally excessive force isquite beside the point.”) (emphasis the Court’s).Accordingly, the summary judgments for the defendantswhich disposed of counts three and four of the amendedcomplaint areAFFIRMED; whereas the summary dismissalsof counts one and two areREVERSED, and the actionREMANDEDfor further proceedings concerning those twocauses of action as are consistent with this opinion.No. 98-6029Claybrook, et al. v. Birchwell, et al.7Birchwell sustained gunshot wounds to his right thigh andknee and left foot. He then reported to the police dispatcher,via radio, that shots had been fired, and again requestedimmediate back-up assistance. At approximately that time,the suspected perpetrator fled behind the market. However,apparently rejecting the available option of escapingunharmed by means of an adjacent street, Claybrookcircumambulated the structure in a bid to ambush the agentsfrom the rear.Claybrook concealed himself behind a slightly elevatedconcrete structure which afforded a dominant strategic firingposture. Each of the three officers testified that they onceagain warned the assailant to drop his weapon. Instead, heaimed his shotgun directly at them. The officers defensivelyfired at the suspect, bringing him to the ground.Approximately at that same moment, marked police unitstransporting uniformed officers, as well as an ambulancecontaining emergency medical technicians (“EMTs”), arrivedat the scene. The entire incident had transpired within onlyone or two minutes.Claybrook, pronounced dead at the scene, had sustained amortal head wound. Upon discovering the seriously injuredQuintana inside the Maxima, the EMTs rushed her toVanderbilt University Hospital, where she receivedemergency medical attention and subsequent extendedhospitalization.On February 12, 1996, the plaintiffs instigated a complaintin district court under section 1983 and Tennessee law.Count one asserted that Royal Jr., Gwannette, and PetreceClaybrook, 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 Counttwo, Claybrook’s three children sought recovery from RobertKirchner, the Chief Executive Officer of the Nashville-8Claybrook, et al. v. Birchwell, et al.No. 98-60294On April 10, 1997, the district court dismissed all claims assertedagainst Chief Robert Kirchner in his individual capacity, but retained himas an official capacity defendant, which ruling is not before this appellateforum. An official capacity claim filed against a public employee isequivalent to a lawsuit directed against the public entity which that agentrepresents.Kentucky v. Graham, 473 U.S. 159, 165 (1985).Municipalities and counties are “persons” exposed to litigation undersection 1983.Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir.),cert.denied, 522 U.S. 914 (1997).5On April 10, 1997, the trial judge dismissed count five withprejudice in the exercise of its statutory discretion to decline to extendsupplemental jurisdiction over a state law claim. 28 U.S.C. § 1367(c).That mandate is not before this reviewing forum.Davidson County Metropolitan Police Department,4for hisalleged failure to (1) properly train and/or supervise the threepolice officer defendants and/or (2) implement adequatedepartmental policies circumscribing the application of deadlyforce. Count three advanced the claims of Quintana and herhusband Royal Jr. for the officers’ averred infringements ofQuintana’s civil rights. Count four articulated Quintana’sclaim against Kirchner anchored in allegations similar tothose stated in count two. Count five, asserted by allplaintiffs, alleged that Birchwell, Lewis, and Spencer hadcommitted state law torts.5Each of Claybrook’s three children requested $125,000 inactual damages, plus an equivalent sum in punitive damages,against each defendant. Quintana sought $250,000 incompensatory damages for her personal injuries, plus anequivalent amount of punitives, against each defendant. Theplaintiffs further petitioned for an award of attorney feesunder 42 U.S.C. § 1988(b), an equitable declaration that theNashville police had violated their civil rights, and aninjunction compelling reform of the Nashville policedepartment’s deadly force policies.Following the lodging of the defendants’ answers to theinitial complaint, the plaintiffs, on May 23, 1996, filed afour-count amended complaint which reiterated, withNo. 98-6029Claybrook, et al. v. Birchwell, et al.1714TheRadeckicourt explained:Deputy Barela had no time for deliberation. The undisputedfacts in this record make clear that Deputy Barela wasconfronted with the kind of instantaneous judgment call that isso often required of law enforcement personnel, prison officials,and many other government actors called to emergencysituations. Sometimes these decisions are negligent, sometimesthey are even reckless, sometimes indifferent. Under thesecircumstances, however, where Plaintiffs have not even allegedthat Deputy Barela acted with an intent to harm the participantsor to worsen their legal plight, under theLewisstandard there isno constitutional liability.Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998),cert. denied,119 S. Ct. 869 (1999).that no conscience-shocking behavior was implicated by adeputy sheriff’s emergency enlistment of a civilianbystander’s assistance in subduing a dangerous assailantwhich prompted the perpetrator to slay the civilian),14cert.denied, 119 S. Ct. 869 (1999).Indeed, the record reflected, without contradiction, that thethree defendant undercover agents did not know that anyonewas present in the gray Maxima prior to, or during, theexchange of gunfire which caused Quintana’s injury. Thus,the defendants could not have acted maliciously orsadistically towards that unknown individual.See Farmer v.Brennan, 511 U.S. 825, 835-36 (1994) (explaining thatmalicious or sadistic behavior entails unjustifiable intentionalconduct undertaken with the direct purpose of causing harmto the victim).Hence, construing all supported allegations and recordevidence most favorably for Quintana, no rational fact findercould conclude that Officers Birchwell, Lewis, and/orSpencer violated her substantive due process rights, becausethe plaintiff cannot prove that they acted with malice orsadism towards her. Thus, the lower court’s summaryjudgment for those defendants on count three of the amendedcomplaint was correct.See Lewis, 118 S. Ct. at 1714 n.5.16Claybrook, et al. v. Birchwell, et al.No. 98-602913The plaintiffs' contention that the defendant officers wrongfullyincited the violence which injured Quintana by entering the parking lotand driving towards the stationary gray vehicle was misconceived.SeeLewis, 118 S. Ct. at 1720-21. As the Seventh Circuit has commented:Other than random attacks, all such cases [involving the use offorce by criminal justice personnel] begin with the decision of apolice officer to do something, to help, to arrest, to inquire. Ifthe officer had decided to do nothing, then no force would havebeen used. In this sense, the police officer always causes thetrouble. But it is trouble which the police officer is sworn tocause, which society pays him to cause and which, if kept withinconstitutional limits, society praises the officer for causing.Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994).prompted by "unforeseen circumstances [which] demand[ed]an officer's instant judgment," to a prison riot.Id. Thus, themore exacting “malicious or sadistic” standard of proof,rather than the comparatively relaxed “deliberateindifference” evidentiary criterion, controlled the “shocks theconscience” substantive due process element.Id. at 1720-21.Similarly, the “malicious or sadistic” test of conscienceshocking behavior controls the instant action because, beyondcontroversy, Officers Birchwell, Lewis, and Spencer had noopportunity to ponder or debate their reaction to thedangerous actions of the armed man.13Hence, even if, as the plaintiffs have argued, the actions ofthe three defendant patrolmen violated departmental policy orwere otherwise negligent, no rational fact finder couldconclude, even after considering the evidence in the lightmost favorable to Quintana, that those peace enforcementoperatives acted with conscience-shockingmaliceorsadismtowards the unintended shooting victim.Lewis, 118 S. Ct. at1721 (dictating that, “[r]egardless whether [Deputy] Smith’sbehavior offended the reasonableness held up by tort law orthe balance struck in law enforcement’s own codes of soundpractices, it does not shock the conscience, and petitioners arenot called upon to answer for it under § 1983.”).See Radeckiv. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998) (concludingNo. 98-6029Claybrook, et al. v. Birchwell, et al.9modifications, causes one through four of their originalcomplaint. However, the plaintiffs added,inter alia, languageto their complaint intended to clarify that Royal Jr.,Gwannette, and Petrece Claybrook did not seek satisfactionfor alleged losses personal to themselves; rather, they wereprosecuting the instant action, as representatives of thedecedent’s estate, for compensation of Claybrook’s pre-deathconstitutional deprivations. The caption of the amendedcomplaint listed the plaintiffs as:ROYAL E. CLAYBROOK, JR., GWANNETTECLAYBROOK, PETRECE CLAYBROOK,COADMINISTRATORS OF THE ESTATE OF ROYALE. CLAYBROOK, SR., AND QUINTANACLAYBROOK[.](Boldface added).The two counts advanced by Claybrook’s three childrenrelated:COUNT ONE33. On the basis of the allegations in paragraphs 1through 32 [generally averring the plaintiffs' version ofthe events of February 28, 1995], defendants Birchwell,Lewis and Spencer are liable, both jointly and severally,to plaintiffs Royal E. Claybrook, Jr., GwannetteClaybrook and Petrece Claybrook, the heirs at law ofRoyal E. Claybrook, Sr., for the defendants’ conduct,individually and in concert, to violate the civil rights ofRoyal E. Claybrook, Sr. under the First, Second, Fourth,Fifth, Eighth and Fourteenth Amendments to the UnitedStates Constitution. These rights include the right to befree from unlawful arrest and from unreasonable andexcessive use of police force, to freedom of movement,to keep and bear arms, to be free from cruel and unusualpunishment, to due process of law and to equalprotection of law.10Claybrook, et al. v. Birchwell, et al.No. 98-6029COUNT TWO34. On the basis of the allegations in paragraphs 1through 32, defendant Robert Kirchner is liable toplaintiffs Royal E. Claybrook, Jr., Gwannette Claybrookand Petrece Claybrook, the heirs at law of Royal E.Claybrook, Sr., for his failure to develop policies andprocedures, to properly train police conduct [sic] inundercover activities, to train with regard to the use ofdeadly force and to supervise and regulate adequately soas to protect Royal E. Claybrook, Sr. and to prevent theviolations of the said Claybrook Sr.'s rights as alleged inparagraph 30 [paragraph 33?] above.Additionally, the amended complaint alleged (1) the parentchild relationship of Claybrook to Royal Jr., Gwannette, andPetrece (paragraphs one through four); (2) that “PlaintiffsRoyal, Gwannette and Petrece Claybrook are coadministrators of the Estate of Royal E. Claybrook, Sr."(paragraph six); and (3) that "[a]s a result of the wrongful actsof the defendants, plaintiffs Royal E. Claybrook, Jr.,Gwannette Claybrook and Petrece Claybrook incurredmedical and funeral expenses, as well as great emotional lossassociated with the wrongful death of their father." (paragraphthirty-one). Furthermore, the plaintiffs’ Prayer for Reliefsought personal compensatory and punitive damage awardsfor each of them, as well as collective equitable relief, inconformity with their original complaint’s prayer; but it didnot expressly request any relief for the Estate of Royal E.Claybrook, Sr..Following discovery, the district court, on July 1, 1998,granted the defendants’ motions for dismissal of the amendedcomplaint and/or summary judgment. The plaintiffs noticeda timely appeal on July 20, 1998.In the Sixth Circuit, a section 1983 cause of action isentirely personal to the direct victim of the allegedconstitutional tort.Jaco v. Bloechle, 739 F.2d 239, 241 (6thCir. 1984).See also Purnell v. City of Akron, 925 F.2d 941,948-49 n.6 (6th Cir. 1991);May v. County ofTrumbull, 127No. 98-6029Claybrook, et al. v. Birchwell, et al.1512As aptly observed by theLewisCourt:[T]he police on an occasion calling for fast action haveobligations that tend to tug against each other. Their duty is torestore and maintain lawful order, while not exacerbatingdisorder more than necessary to do their jobs. They aresupposed to act decisively and to show restraint at the samemoment, and their decisions have to be made in haste, underpressure, and frequently without the luxury of a second chance.County of Sacramento v. Lewis, 118 S. Ct. 1708, 1720 (1998) (citationsomitted).See also Graham v. Connor, 490 U.S. 386, 397 (1989) (“policeofficers are often forced to make split-second judgments – incircumstances that are tense, uncertain, and rapidly evolving -- about theamount of force that is necessary in a particular situation.”).Fundamentally, the substantive component of the dueprocess clause insulates citizens against the arbitrary exerciseof governmental power.Id.at 1716. Accordingly, conduct ofa law enforcement officer towards a citizen which “shocks theconscience” denies the victim fundamental substantive dueprocess.Id. at 1717. In situations wherein the implicatedstate, county, or municipal agent(s) are afforded a reasonableopportunity to deliberate various alternatives prior to electinga course of action (such as, for example, most occasionswhereby corrections officials ignore an inmate’s seriousmedical needs), their actions will be deemed conscienceshocking if they were taken with “deliberate indifference”towards the plaintiff’s federally protected rights.Id. at 1719.In contradistinction, in a rapidly evolving, fluid, anddangerous predicament which precludes the luxury of calmand reflective pre-response deliberation (such as, for example,a prison riot), public servants’ reflexive actions “shock theconscience” only if they involved force employed“maliciously and sadistically for the very purpose of causingharm" rather than "in a good faith effort to maintain or restorediscipline[.]"12Id. at 1720 (citation omitted).Applying those principles, theLewisCourt analogized ahigh-speed motorcycle chase, which led to the accidentaldeath of the pursued motorbike’s innocent passenger,14Claybrook, et al. v. Birchwell, et al.No. 98-602910The Fourteenth Amendment to the United States Constitutionstipulates, in pertinent segment, that “No state shall . . . deprive anyperson of life, liberty, or property, without due process of law[.]” U.S.Const. amend. XIV, § 1.11The Fourth Amendment posits, in relevant portion, that “The rightof the people to be secure in their persons . . . against unreasonable . . .seizures, shall not be violated[.]” U.S. Const. amend. IV.[sic] in undercover activities, to train with regard to theuse of deadly force and to supervise and regulateadequately so as to protect Quintana Claybrook and toprevent the violations of the said Quintana Claybrook'srights as alleged in paragraph 32 [paragraph 35?] above.On review, Quintana has disputed only the trial court’sdismissal of her Fourteenth Amendment substantive dueprocess claim.10Ordinarily, a charge that law enforcementpersonnel used excessive force to effect a plaintiff’s arrest,which caused bodily injury to that individual, is assessedunder Fourth Amendment “objective reasonableness”standards.11Graham v.Connor, 490 U.S. 386, 394-97(1989);Tennessee v. Garner, 471 U.S. 1, 7-9 (1985).Accordingly, when an arrestee is “seized” by means of deadlyforce, any dependent section 1983 claim initiated by thetarget, or his or her estate, must be supported by proof that,under the pertinent circumstances, the means used to detainthe suspect were objectively “unreasonable.”Id. However,the Fourth Amendment “reasonableness” standard does notapply to section 1983 claims which seek remuneration forphysical injuriesinadvertently inflicted upon an innocentthird partyby police officers’ use of force while attemptingto seize a perpetrator, because the authorities could not“seize” any person other than one who was a deliberate objectof their exertion of force.Brower v. County of Inyo, 489 U.S.593, 596 (1989). Rather, constitutional tort claims assertedby persons collaterally injured by police conduct who werenot intended targets of an attempted official “seizure” areadjudged according to substantive due process norms.Countyof Sacramento v. Lewis, 118 S. Ct. 1708, 1714-16 (1998).No. 98-6029Claybrook, et al. v. Birchwell, et al.116Because the lower court’s analysis of counts one and two focusedexclusively upon the sufficiency of the amended complaint’s allegations,this review construes the trial court’s dismissal of those causes of actionas a Rule 12(b)(6) dismissal for failure to state a claim.F.3d 1102 (Table), 1997 WL 651662, at **4 (6th Cir. Oct. 20,1997) (per curiam);Tinch v. City of Dayton, 77 F.3d 483(Table), 1996 WL 77445, at **1 (6th Cir. Feb. 20, 1996) (percuriam). Accordingly, only the purported victim, or hisestate’s representative(s), may prosecute a section 1983 claim;conversely, no cause of action may lie under section 1983 foremotional distress, loss of a loved one, or any otherconsequent collateral injuries allegedly suffered personally bythe victim’s family members.Id. Despite the amendedcomplaint’s caption, which named plaintiffs Royal Jr.,Gwannette, and Petrece as co-administrators of Claybrook’sestate, coupled with an express allegation at paragraph six tothat same effect, the district court construed counts one andtwo as seeking only compensation for alleged personal lossesand suffering experienced individually by Claybrook’s threechildren. Consequently, the district court dismissed countsone and two because the plaintiffs lacked standing to initiatepersonal claims stemming from alleged violations of theirdeceased father’s federally protected liberties.6Uponde novoreview of a trial court’s dismissal of acomplaint under Rule 12(b)(6), the allegations of thecomplaint should be construed liberally in the plaintiffs’favor.Lewis v. ACB Business Services, Inc., 135 F.3d 389,405 (6th Cir. 1998). “[A] complaint should not be dismissedfor failure to state a claim unless it appears beyond doubt thatthe plaintiff can provenoset of facts in support of his claimwhich would entitle him to relief.”Conley v. Gibson, 355U.S. 41, 45-46 (1957) (emphasis added; note omitted). In thiscase, the lower court dismissed counts one and two on thesole rationale that the plaintiffs had failed to plead that theysought damages as representatives of their deceased father’sestate for his alleged constitutional injuries. However,plenary scrutiny of the material allegations of the amendedcomplaint reveals that, when construed in the light most12Claybrook, et al. v. Birchwell, et al.No. 98-60297This court emphasizes that, as to counts one and two of the amendedcomplaint, it rules only that the plaintiffs have sufficiently alleged thatthey are seeking monetary compensation, as the co-administrators of thedecedent’s estate, for alleged constitutional torts personally suffered byClaybrook, which affords them standing as vindicators of Claybrook’sindividual federal rights to the extent that his tort claims survived, underTennessee law, beyond his own death.See Jaco v. Bloechle, 739 F.2d239, 241-45 (6th Cir. 1984); Tenn. Code Ann. §§ 20-5-102 & 106 (1994& Supp. 1998). This reviewing forum expresses no opinion regarding thesubstantive merits of any claim asserted within counts one and/or two offavorable for the plaintiffs, they have adequately requestedcompensation for Claybrook’s alleged constitutional injuriesin their representative capacities as co-administrators of hisestate.Notwithstanding that certain allegations of the amendedcomplaint also appear to aver that Claybrook’s childrensuffered personal losses caused by the defendants’ allegedimpingements of their decedent’s constitutionally safeguardedinterests, which created some ambiguity regarding the identityof the person(s) whose injuries in fact were asserted in countsone and two, this reviewing forum regards those extraneousallegations to constitute mere surplusage which ultimatelyhave no substantive effect. Because the plaintiffs haveunequivocally alleged in plain language that they haveprosecuted the subject action as the co-administrators ofClaybrook’s estate, matched with clear allegations in countsone and two that the defendants’ actions had deprivedClaybrookof his civil rights, it cannot be said that they havepleadednoset of facts in counts one and two which couldconceivably entitle them, as representatives of Claybrook’sestate, to relief. Accordingly, the district court’s dismissal ofcounts one and two for failure to state a claim, which wasjustified solely on the rationale that the plaintiffs had not pledthat they sought recovery for their late parent’s injuries asrepresentatives of his estate, constituted legal error. Hence,the Rule 12(b)(6) dismissals of counts one and two arereversed, and the caseremandedto the district court forfurther proceedings regarding those causes of action as areconsistent with this decision.7No. 98-6029Claybrook, et al. v. Birchwell, et al.13the amended complaint.8Because consideration of the sufficiency of the record evidence isnecessary to dispose of counts three and four, as developed below, thisreview construes the lower court’s rejection of those causes of action asa summary adjudication.SeeFed. R. Civ. P. 12(b) & 56.9For the reasons developed above, Royal Claybrook Jr. lacksstanding under section 1983 to claim compensation for any indirectinjuries allegedly caused to him by reason of any constitutional tortsuffered by his spouse Quintana Claybrook, irrespective of the potentialmerits of Quintana’s personal claims.By contrast, the district court correctly resolved that countsthree and four of the amended complaint were not supportedby sufficient evidence.8Those causes of action recited:COUNT THREE35. On the basis of the allegations in paragraphs 1through 32, defendants Birchwell, Lewis and Spencer areliable, both jointly and severally, to plaintiff QuintanaClaybrook for the defendants' conduct, individually andin concert, to violate the civil rights of QuintanaClaybrook under the First, Second, Fourth, Fifth, Eighth,and Fourteenth Amendments to the United StatesConstitution. These rights include the right to be freefrom unlawful arrest and from unreasonable andexcessive use of police force, to freedom of movement,to keep and bear arms, to be free from cruel and unusualpunishment, to due process of law and to equalprotection of law. Said defendants are liable to plaintiffRoyal E. Claybrook, Jr. for the loss of companionship,love and affection of his wife, Quintana Claybrook.9COUNT FOUR36. On the basis of the allegations in paragraphs 1through 32, defendant Robert Kirchner is liable toplaintiff Quintana Claybrook for his failure to developpolicies and procedures, to properly train police conduct