1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

ROYAL E. CLAYBROOK, JR.,GWANNETTE CLAYBROOK,PETRECE CLAYBROOK, COADMINISTRATORS OF THEESTATE OF ROYALCLAYBROOK, SR., andQUINTANA CLAYBROOK,

Plaintiffs-Appellants,

v.

JESSE BIRCHWELL, STEVE

LEWIS, KEN SPENCER,ROBERT KIRCHNER, and

METROPOLITAN

GOVERNMENT OF NASHVILLE& DAVIDSON COUNTY,

Defendants-Appellees.

Appeal from the United St

for the Middle District of Te

No. 96-00157—John T. Ni

Argued: August 

Decided and Filed: Jan
2 Claybrook, et al. v. Birchwell, et al. No. 98-6029

1The district court cast its ruling as an alternate dismissal of the

complaint for failure to state a claim and/or summary judgment adverseto the plaintiffs. 

"Whether a district court has correctly dismissed a suit pursuant to

Fed. R. Civ. P. 12(b)(6) [failure to state a claim] is a question of law, andtherefore subject to de novo review. The district court must construe the

Before: KRUPANSKY, BOGGS, and CLAY, Circuit

Judges.

_________________

COUNSEL

ARGUED: 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, in

which BOGGS, J., joined. CLAY, J. (pp. 19-23), delivereda separate opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

KRUPANSKY, Circuit Judge. The plaintiffs-appellants

Royal 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,1 against the

No. 98-6029 Claybrook, et a

and Four of the complaint. I supplemental state law claims.
22 Claybrook, et al. v. Birchwell, et al. No. 98-6029

officers 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 also Stemler 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’”) (quoting Gazette 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 dismissal

of Ms. Claybrook’s claim against the officers for violation ofher substantive due process rights as set forth in Counts Three

No. 98-6029 Claybrook, et acomplaint in a light most favorable to the pallegations as true, and determine whetheprove no set of facts in support of his c

relief. When an allegation is capable of mbe construed in the plaintiff's favor." Cov. Tatum, 58 F.3d 1101, 1109 (6th CAlthough the complaint’s allegations aplaintiff, a complaint which does not csupport a claim under any legal theory munot bound to accept alleged legal conc

inferences. Morgan v. Church's Fried Ch1987).

Following adequate opportunities for 

motion, summary judgment under Fed. against a plaintiff who has failed to produceach element of his or her prima facie cas

U.S. 317, 322-23 (1986). Because suquestion of law, a trial court’s grant dismissal under Fed. R. Civ. P. 12(b)(6)Painter v. Robertson, 185 F.3d 557, 5Abramson, 180 F.3d 739, 756 n.7 (6th Ci(1999).

2Section 1983 provides, in pertinent 

Every person who, under color 

regulation, custom, or usage, of any Sto be subjected, any citizen of the Unwithin the jurisdiction thereof to the privileges, or immunities secured by shall be liable to the party injured iequity, or other proper proceeding foIn any action under section 1983, the 

has been deprived of a right secured by thdefendants-appellees Jesse BirchLewis (“Lewis”), Ken Spencer (“S(“Kirchner”), and the Metropolitan and Davidson County, Tennessplaintiffs have alleged that peace and Spencer used excessive force§ 1983,2 which resulted in the dea
4 Claybrook, et al. v. Birchwell, et al. No. 98-6029

laws, (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 (6th

Cir. 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 his estate; and (2) Quintana had sufferedno cognizable constitutional tort.

On the evening of February 28, 1995, plainclothes

caucasian 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 the

market’s parking lot. He intended to stop his vehicle on what

No. 98-6029 Claybrook, et adepartment rules requiring them to uniformed officers, and they madrequest such support. The officerdepartment rules mandated tinvestigating the situation unless arose. Significantly, at the point Claybrook standing outside with ttestified that he did not believe imminent danger or that exigent ciuse of force existed. However, aftto request backup, the officers iengage Mr. Claybrook in a violeawaiting the arrival of the uniformemajority’s assertion, the officers hea high-speed pursuit or any high-prtime that they decided to act, as wSee 118 S. Ct. at 1720-21. As sucshould be analyzed using the standard; which is to say, her claim context of whether the officers hajudgment about their conduct. Id.; Metro. Police Dep’t, 159 F.3d 3(recognizing that the critical queappropriate standard of culpability the circumstances allowed the sconsider the potential consequenc

When viewing the officers’ ac

questions of fact remain for the jurwhether the officers’ conduct vsubstantive due process rights. For exist as to whether the officers obsthe car or reasonably should have kwas in the car, in that if the officethe time they claimed, a reasonable they observed Ms. Claybrook leavithe car. Furthermore, a question othe officers should have provoked Claybrook before the uniformed bawhether they should have identif
20 Claybrook, et al. v. Birchwell, et al. No. 98-6029

In Lewis, the Supreme Court reviewed the range of conduct

under which a substantive due process claim may arise underthe Fourteenth Amendment. See 118 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. (quoting Rochin 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. (quoting Daniels v. Williams, 474 U.S. 327, 332 (1986)).

When conducting an “exact analysis” of the facts of this

case 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 of

No. 98-6029 Claybrook, et aappeared to be a driveway or allbuilding’s western side, to surreptitiously observe the firearsuspicious gray automobile, pendinmarked squad car. However, discovered that no contiguous structure’s west end. Consequentvehicle to prevent the armed suspebacks, Birchwell maneuvered thtowards the stationary gray autom

That movement prompted the 

menacingly behind the hood of the the intruders. Unbeknownst Claybrook’s daughter-in-law, Quinthe market. Because that establishman unlawful “numbers” gamboccasionally targeted it. Quintdepositing illegal betting proceedsdanger prompted Claybrook habiwhile armed, from the store tcustomarily remained in the parkinin plain view, until Quintana had ewas acting as a security guard for evening of February 28, 1995. Wvehicle arrived at the scene, QuintMaxima, seated behind the steertowards the three defendant peace of them testified that he did nooccupied that automobile.

Quintana testified that a pass

vehicle (the unmarked police car) his weapon, to which he respondedShe further attested:

And then the next thing I 

firecracker sound, and then I feland I kind of jumped, like, you k
6 Claybrook, et al. v. Birchwell, et al. No. 98-6029

3Birchwell testified that "it's very easy to distinguish a pistol shot

from 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 of

felt, 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 was

a 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.3 And I was like, we're getting robbed.Somebody's robbing us.Tragically, Quintana’s back had been struck by a stray

bullet. 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 shielded

himself 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. Officer

No. 98-6029 Claybrook, et a

__________________________

CONCURRING IN PART, DI

__________________________

CLAY, Circuit Judge, concurrin

part. I concur in the majority’s deccourt’s dismissal of Counts One ahowever, because I believe that thof Counts Three and Four shorespectfully dissent from the majordismissal of these counts.

I disagree with the majority’

considers to be the appropriate ssubstantive due process claim of QClaybrook”), as set forth in Counts analyzed. The majority applies standard used for situations involvofficers are called to make “fast facing an ensuing prison riot or whspeed chase. Under such circustandard of fault, such as “‘whethgood faith effort to maintain maliciously and sadistically for thharm,’” must be shown in order to hSee County of Sacramento v. Lewi

1708, 1720 (1998) (quoting Witley 320 (1986)). Because the recomajority’s application of this stastandard of culpability – that which more than negligence but less than as recklessness or gross negligenceLewis, 118 S. Ct. at 1718 (internal Under this standard, coined by “deliberate indifference,” a questias to whether the officers’ conducrose to this level.
18 Claybrook, et al. v. Birchwell, et al. No. 98-6029

Furthermore, 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 haveauthorized the use of unconstitutionally excessive force isquite beside the point.”) (emphasis the Court’s).

Accordingly, the summary judgments for the defendants

which disposed of counts three and four of the amendedcomplaint are AFFIRMED; whereas the summary dismissalsof counts one and two are REVERSED, and the action

REMANDED for further proceedings concerning those twocauses of action as are consistent with this opinion.

No. 98-6029 Claybrook, et aBirchwell sustained gunshot wouknee and left foot. He then reportevia radio, that shots had been fiimmediate back-up assistance. Athe suspected perpetrator fled behapparently rejecting the availaunharmed by means of an adcircumambulated the structure in a from the rear. 

Claybrook concealed himself b

concrete structure which afforded posture. Each of the three officeagain warned the assailant to drop aimed his shotgun directly at themfired at the suspect, bringing Approximately at that same momtransporting uniformed officers, containing emergency medical techat the scene. The entire incident hone or two minutes.

Claybrook, pronounced dead at 

mortal head wound. Upon discovQuintana inside the Maxima, thVanderbilt University Hospitalemergency medical attention ahospitalization.

On February 12, 1996, the plaint

in district court under section 1Count one asserted that Royal JrClaybrook, as the “heirs at law” suffered injuries consequent to the alleged violations of their parent’two, Claybrook’s three children soKirchner, the Chief Executive O
8 Claybrook, et al. v. Birchwell, et al. No. 98-6029

4On April 10, 1997, the district court dismissed all claims asserted

against 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 with

prejudice 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,4 for 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.5

Each of Claybrook’s three children requested $125,000 in

actual 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 the

initial complaint, the plaintiffs, on May 23, 1996, filed afour-count amended complaint which reiterated, with

No. 98-6029 Claybrook, et a

14The Radecki court explained:

Deputy Barela had no time for delifacts in this record make clear confronted with the kind of instantaso often required of law enforcement and many other government actosituations. Sometimes these decisionthey are even reckless, sometimes circumstances, however, where Plainthat Deputy Barela acted with an inteor to worsen their legal plight, under no constitutional liability.

Radecki v. Barela, 146 F.3d 1227, 1232 

119 S. Ct. 869 (1999).

that no conscience-shocking behadeputy sheriff’s emergency enbystander’s assistance in subduiwhich prompted the perpetrator to 

denied, 119 S. Ct. 869 (1999).

Indeed, the record reflected, with

three defendant undercover agents was present in the gray Maxima exchange of gunfire which caused the defendants could not havsadistically towards that unknown Brennan, 511 U.S. 825, 835-36 malicious or sadistic behavior entaiconduct undertaken with the directo the victim). 

Hence, construing all supporte

evidence most favorably for Quintcould conclude that Officers BSpencer violated her substantive dthe plaintiff cannot prove that thsadism towards her. Thus, the judgment for those defendants on ccomplaint was correct. See Lewi
16 Claybrook, et al. v. Birchwell, et al. No. 98-6029

13The plaintiffs' contention that the defendant officers wrongfully

incited 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, the

more 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.13

Hence, even if, as the plaintiffs have argued, the actions of

the 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-shocking malice or sadism

towards 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) (concluding

No. 98-6029 Claybrook, et amodifications, causes one throucomplaint. However, the plaintiffs 

to their complaint intended to Gwannette, and Petrece Claybrook for alleged losses personal to themprosecuting the instant action, adecedent’s estate, for compensatioconstitutional deprivations. The complaint listed the plaintiffs as:

ROYAL E. CLAYBROOK, CLAYBROOK, PETRECE ADMINISTRATORS OF THE E. CLAYBROOK, SR., CLAYBROOK[.]

(Boldface added).

The two counts advanced by C

related:

COUNT O

33. On the basis of the alle

through 32 [generally averring tthe events of February 28, 1995Lewis and Spencer are liable, boto plaintiffs Royal E. ClaybClaybrook and Petrece ClaybroRoyal E. Claybrook, Sr., for thindividually and in concert, to vRoyal E. Claybrook, Sr. under thFifth, Eighth and Fourteenth AmStates Constitution. These rightfree from unlawful arrest and excessive use of police force, to to keep and bear arms, to be free punishment, to due process protection of law.
10 Claybrook, et al. v. Birchwell, et al. No. 98-6029

COUNT TWO

34. On the basis of the allegations in paragraphs 1

through 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, and

Petrece (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 is

entirely 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 of Trumbull, 127

No. 98-6029 Claybrook, et a

12As aptly observed by the Lewis C

[T]he police on an occasion callobligations that tend to tug against erestore and maintain lawful orderdisorder more than necessary to supposed to act decisively and to smoment, and their decisions have tpressure, and frequently without the 

County of Sacramento v. Lewis, 118 S. Comitted). See also Graham v. Connor, 49officers are often forced to make circumstances that are tense, uncertain, aamount of force that is necessary in a par

Fundamentally, the substantive 

process clause insulates citizens agof governmental power. Id. at 1716

a law enforcement officer towards conscience” denies the victim funprocess. Id. at 1717. In situationstate, county, or municipal agent(sopportunity to deliberate various ala course of action (such as, for whereby corrections officials ignmedical needs), their actions wilshocking if they were taken with towards the plaintiff’s federally pr

In contradistinction, in a rapiddangerous predicament which preand reflective pre-response deliberaa prison riot), public servants’ refconscience” only if they inv“maliciously and sadistically for thharm" rather than "in a good faith ediscipline[.]"12 Id. at 1720 (citatio

Applying those principles, the 

high-speed motorcycle chase, whdeath of the pursued motorbik
14 Claybrook, et al. v. Birchwell, et al. No. 98-6029

10The Fourteenth Amendment to the United States Constitution

stipulates, 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 right

of 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’s

dismissal of her Fourteenth Amendment substantive dueprocess claim.10 Ordinarily, a charge that law enforcement

personnel used excessive force to effect a plaintiff’s arrest,which caused bodily injury to that individual, is assessedunder Fourth Amendment “objective reasonableness”standards.11 Graham 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 injuries inadvertently inflicted upon an innocentthird party by 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. County

of Sacramento v. Lewis, 118 S. Ct. 1708, 1714-16 (1998).

No. 98-6029 Claybrook, et a

6Because the lower court’s analysis 

exclusively upon the sufficiency of the amthis review construes the trial court’s disas a Rule 12(b)(6) dismissal for failure to F.3d 1102 (Table), 1997 WL 651661997) (per curiam); Tinch v. City (Table), 1996 WL 77445, at **1 (6curiam). Accordingly, only the estate’s representative(s), may prosconversely, no cause of action may emotional distress, loss of a lconsequent collateral injuries allegthe victim’s family members. Icomplaint’s caption, which namGwannette, and Petrece as co-admestate, coupled with an express allthat same effect, the district court two as seeking only compensation and suffering experienced individuchildren. Consequently, the distrione and two because the plaintiffs personal claims stemming from adeceased father’s federally protect

Upon de novo review of a tri

complaint under Rule 12(b)(6)complaint should be construed lfavor. Lewis v. ACB Business Ser

405 (6th Cir. 1998). “[A] complainfor failure to state a claim unless it the plaintiff can prove no set of fawhich would entitle him to reliefU.S. 41, 45-46 (1957) (emphasis adcase, the lower court dismissed csole rationale that the plaintiffs hasought damages as representatives estate for his alleged constitutioplenary scrutiny of the material acomplaint reveals that, when con
12 Claybrook, et al. v. Birchwell, et al. No. 98-6029

7This court emphasizes that, as to counts one and two of the amended

complaint, 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.2d

239, 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 of

favorable 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 amended

complaint 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 deprivedClaybrook of his civil rights, it cannot be said that they havepleaded no set 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 case remanded to the district court forfurther proceedings regarding those causes of action as areconsistent with this decision.7

No. 98-6029 Claybrook, et athe amended complaint.

8Because consideration of the suffic

necessary to dispose of counts three and review construes the lower court’s rejecta summary adjudication. See Fed. R. Civ

9For the reasons developed abov

standing under section 1983 to claim injuries allegedly caused to him by reasuffered by his spouse Quintana Claybromerits of Quintana’s personal claims.

By contrast, the district court cor

three and four of the amended comby sufficient evidence.8 Those ca

COUNT TH

35. On the basis of the alle

through 32, defendants Birchwelliable, both jointly and severallClaybrook for the defendants' coin concert, to violate the civClaybrook under the First, Seconand Fourteenth Amendments Constitution. These rights inclfrom unlawful arrest and frexcessive use of police force, to to keep and bear arms, to be free punishment, to due process protection of law. Said defendaRoyal E. Claybrook, Jr. for the love and affection of his wife, Q

COUNT FO

36. On the basis of the alle

through 32, defendant Robert plaintiff Quintana Claybrook fopolicies and procedures, to prop