UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19
- 1262

MATEUSZ FIJALKOWSKI , Plaintiff − Appellant ,

v. M. WHEELER; S. ADCOCK; S. BLAKELY; R. BRONTE

- TINKEW; C. CLARK; J. GRANDE; R. JAKOWICZ; L. LABARCA; L. MCNAUGHT; W. MULHERN; M. ZESK , Defendant s

– Appellee s , and AMERICAN POOL INC.; SEAN BROOKS , Defendants

.

---------------------------------- WASHINGTON LAWYERS ’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS; THE RUTHERFORD INSTITUTE, Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia , at Alexandria

. T. S. Ellis, III , Senior District Judge. ( 1:18

- cv - 00492

- TSE

- MSN )
Argued : November 13 , 201 9 Decided: March 9, 2020

Before MOTZ, DIAZ , and HARRIS, Circuit Judges.2 Affirmed by un published opinion

. Judge Diaz wrote the opinion, in which Judge Motz and Judge Harris joined.

ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Kimberly Pace Baucom, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellees. ON BRIEF: Bernadette E. Valdellon, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Karen Gibbons, Elizabeth Teare, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellees. Jonathan Smith, Hannah Lieberman, WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; Carter G. Phillips, Mark P. Guerrera, David E. Kronenberg, Justin A. Benson, Joshua Moore, SIDLEY AUSTIN LLP, Washington, D.C. for Amicus Washington Lawyers’ Committee for Civil Rights and Urban Affairs. John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Amicus The Rutherford Institute.
Unpublished opinions are not binding precedent in this circuit.3 DIAZ, Circuit Judge: Mateusz Fijalkowski brought this action under 42 U.S.C. § 1983 and state law, arguing, as relevant here , that Fairfax County, Virginia police officers violated his Fourteenth Amendment substant ive due process rights when they delayed

— for up to two

and

- a - half minutes

— a lifeguard from rescuing him from drowning in a swimming pool

. He also alleges that the officers were grossly negligent under Virginia law when they delayed his rescue and otherwis e failed to assist him

. The district court dismissed these claims, concluding that the officers were entitled to qualified immunity on the substantive due process claim and that Fijalkowski failed to state a gross negligence claim. For the reasons that f ollow, we affirm.

I. On May 23, 2016, twenty

- three

- year - old Mateusz Fijalkowski arrived in the United States from his home country, Poland, to work for the summer. 1 Three days later, Fijalkowski began working as a pool attendant at Riverside Apartmen ts in Fairfax County, Virginia. He was trained to clean the pool, check the pH level of the water, and arrange

1 Because this case comes to us on appeal from the grant of a motion to dismiss, w e accept the facts alleged in the complaint as true and draw all reasonable inferences in Fijalkowski’s favor. See Hamilton v. Pallozzi , 848 F.3d 614, 620 (4th Cir. 2017).4 the deck chairs. He wasn’t trained to perform lifeguarding duties, and he didn’t know how to swim. On May 30, 2016, Fijalkowski began acting i rrationally at work. He argued with guests over the colored wristbands required to enter the pool area, and he grabbed a young woman by the arm and ripped off her wristband. He also began talking to himself in Polish and walking around the pool without p urpose, appearing distressed

. A lifeguard on duty that day, Sean Brooks, called the police, and Fairfax County police officers arrived shortly thereafter. Brooks told the officers about Fijalkowski’s behavior and that he appeared to be experiencing a m ental health crisis . Brooks also told them that Fijalkowski couldn’t swim. The complaint further alleges that the officers “were aware that [Fijalkowski] was a supposed lifeguard who did not know how to swim and who was experiencing a serious mental heal th breakdown, making himself a potential risk of harm to himself and others at the pool.” J.A. 12. The officers attempted to communicate with Fijalkowski, but he blew his whistle and continually moved away from them. The officers directed all pool patrons to leave and locked the fence that surrounded the pool. Only Fijalkowski, Brooks, and the officers remained inside the fenced

- in pool area. The officers called a Polish

- speaking officer and Fijalkowski’s Polish roommate to the pool to attemp t to communicate with him. One of the officers was trained in crisis intervention, but he and the others were unable to communicate with Fijalkowski, who didn’t acknowledge them. Fijalkowski continued to act erratically . He paced around the pool and talk ed to himself. He threw his cell phone into the deep end of the pool and walked in to recover it,5 submerging himself in the process. He soon emerged from the pool, but he then threw his cell phone into the deep end a second time. Again, he walked into t he pool to recover it, submerg ed himself , and then emerged

. H e also climbed into a lifeguard tower and shouted and blew his whistle. The officers continued to attempt to communicate with him, but he didn’t respond. Fijalkowski then went to the ladder at the shallow end of the pool and stood calmly and silently for about one minute. 2 He entered the pool again, going to the deep end and submerging himself. Brooks and the officers stood around the pool and watched him. After some period of time, Fijalkow ski grabbed onto the pool’s drain cover and struggled not to surface. He vomited, and after about a minute and twenty

- two seconds, he released the air retained in his lungs. Eventually, he stopped moving. Brooks and the officers continued to watch him, though they knew that he was at risk of drowning after he had been submerged for thirty seconds and had released the air from his lungs. At some point , Brooks told the officers that he needed to rescue Fijalkowski . Brooks was able and equipped to do so , but the officers ordered Brooks not to enter the pool. After Fijalkowski had been submerged for approximately two

- and

- a - half minutes, Brooks again told the officers that he needed to rescue him, and (this time) the officers allowed him to do so. Brooks dove into the pool and brought Fijalkowski to the surface. Several of the officers jumped in to help remove him from the water.

2 At this time, a bystander began videotaping the incident. The contents of the video are incorporated into the c omplaint by reference, so we consider them here. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 448 (4th Cir. 2011).6 Once Fijalkowski was out of the pool, the officers perform ed lifesaving measures. Emergency medical technicians arrived and used a ladder to climb over the locked pool fence to reach Fijalkowski. They found that he wasn’t breathing and didn’t have a pulse. They applied an automatic external defibrillator to his chest. This revived him, and he was transported to the hospital. Fijalkowski remained in the hospital’s heart and vascular unit for just over a week

. He was then transferred to the psychiatric unit, where he was diagnosed with bipolar disorder and psychosis. He was discharged from the hospital six days later and retu rned to Poland. Fijalkowski filed suit against the officers, Brooks, and Brooks’s employer, seeking damages under 42 U.S.C. § 1983 and state law. As relevant here, Fijalkowski allege s that the officers violated his Fourteenth Amendment substantive due p rocess rights when they delayed Brooks ’s rescue efforts and that they were grossly negligent under Virginia law when they delayed his rescue and otherwise failed to assist him

. 3 The defendants moved to dismiss the complaint, and the district court granted the motion, concluding, in relevant part, that the officers were entitled to qualified immunity and that Fijalkowski failed to state a claim of gross negligence. This appeal follow ed.

3 Fijalkowski also alleges that the officers violated his substantive due process rights when they failed to prevent him from entering the pool. The district court dismissed this allegation for failure to state a claim. The court also dismissed Fijalkowski ’s claims against Brooks and Brooks’s employer. Fijalkowski does not appeal the se rulings

.7 II. We first consider the district court’s dismissal of Fijalkowski’s substantive due process claim on the ground that the officers were entitled to qualified immunity . “We review a qualified immunity

- based motion to dismiss de novo.” Tobey v. Jones , 706 F.3d 379, 385 (4th Cir. 2013).
A. Qualified immunity shields state officials from civil liability under § 1983 “unless their actions violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pinder v. Johnson , 54 F.3d 1169, 1173 (4th Cir. 1995) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). “Determining whether a state officer is entitled to qualified immunity is a two

- step inquiry.” Bailey v. Kennedy , 349 F.3d 731, 739 (4th Cir. 2003). First, we consider “whether a cons titutional right would have been violated on the facts alleged.” Id. (quoting Saucier v. Katz , 533 U.S. 194, 200 (2001)). Second, “assuming that the violation of the right is established,” we “consider whether the right was clearly established at the tim e such that it would be clear to an objectively reasonable officer that his conduct violated that right.” Id. (quoting Brown v. Gilmore , 278 F.3d 362, 367 (4th Cir. 2002)). We may consider the steps in either order. Pearson v. Callahan , 555 U.S. 223, 236 (2009). To determine whether a right was clearly established, we consider whether controlling authority, or a “robust consensus of persuasive authority,” Booker v. S.C. Dep’t of Corr. , 855 F.3d 533, 544 (4th Cir. 2017) (internal quotation marks omitted ) , would have given the officers “ ‘ fair warning that their conduct, ’ under the circumstances, ‘ was8 wrongful , ’ ” Williams v. Strickland , 917 F.3d 763, 769 (4th Cir. 2019) (internal quotation marks omitted) (quoting Williamson v. Stirling , 912 F.3d 154, 187 ( 4th Cir. 2018)). We must define the right allegedly violated “at a high level of particularity.” Braun v. Maynard , 652 F.3d 557, 562 (4th Cir. 2011) (quoting Campbell v. Galloway , 483 F.3d 258, 271 (4th Cir. 2007)). Although this standard “do[es] not r equire a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al

- Kidd , 563 U.S. 731, 741 (2011). However, “when ‘ the defendants’ conduct is so patently violative of [a] constitutional right that reasonable officials would know without guidance from the courts ’ that the action was unconstitutional, closely analogous
pre - existing case law is not required to show that the law is clearly established.” Clem v. Corbeau , 284 F .3d 543, 553 (4th Cir. 2002) (quoting Mendoza v. Block , 27 F.3d 1357, 1361 (9th Cir. 1994)). 4
B. Fijalkowski contends that the officers violated his substantive due process rights when they ordered Brooks not to enter the pool to rescue him. Fijalkowski r elies on the
state

- created danger doctrine, which holds that state actors are liable under the Due Process Clause when they “created or increased the risk of private danger, and did so directly

4 To emphasize the point, Fijalkowski directs us to our recent decision in Ray v. Roane , 948 F.3d 222 (4th Cir. 2020). We agree with Ray that “directly on

- point, b inding authority” is not required where “the right was clearly established based on general constitutional principles,” id. at 229 (quoting Booker , 855 F.3d at 543), and we apply that principle here.9 through affirmative acts, not merely through inaction or omiss ion.” Doe v. Rosa , 795 F.3d 429, 439 (4th Cir. 2015). We decline to resolve whether the officers’ conduct constitutes a substantive due process violation under the state

- created danger doctrine. Rather, we agree with the district court that even if it d oes, the officers are entitled to qualified immunity because it was not clearly established at the time of the incident that delaying by up to two

- and

- a - half minutes 5 the rescue of a drowning person who may have posed a danger to others violated that perso n’s substantive due process rights. The parties have identified no controlling authority placing the constitutionality of the officers’ conduct beyond debate, and we agree that there is none. But this doesn’t end our inquiry; a “robust consensus of pers uasive authority” may also clearly establish the right allegedly violated. Booker , 855 F.3d at 544 (internal quotation marks omitted)

. Fijalkowski offers no such robust consensus. The officers , for their part , point to three cases from our sister circui ts addressing alleged substantive due process violations by officers who prevented the rescue of drowning persons . The officers contend that together, these cases fail to provide a consensus, let alone a robust consensus, that would have given them fair w arning that their conduct violated Fijalkowski’s substantive due process rights. We agree. 6

5 It is not clear from the complaint or the video when B rooks first sought to rescue Fijalkowski. If Brooks did so immediately after Fijalkowski entered the water, the officers would have delayed his rescue for a maximum of two

- and

- a - half minutes.

6 The officers also highlight three other cases addressing alleged substantive due process violations by officers who interacted with suicidal persons . Appellees’ Br. at 24

– 26. Because these cases neither found violations nor involved the delay of rescue efforts10 The first of the factually similar cases is Ross v. United States , 910 F.2d 1422 (7th Cir. 1990). In Ross , a twelve

- year - old boy fell into a lake and sank. Id. at 1424. Within ten minutes, two lifeguards, two firefighters, and one police officer arrived on the scene to conduct a rescue. Id. In addition, two nearby civilians with a boat and scuba diving
eq uipment offered to assist in the rescue. Id. Despite these resources, a county deputy sheriff ordered all rescue efforts to stop because, under a county policy, only divers from the city fire department were authorized to rescue someone drowning in the l ake. Id. at 1424

– 25. When the civilians offered to attempt the rescue at their own risk, the deputy sheriff threatened to arrest them and positioned his boat to prevent them from entering the
water. Id. at 1425. Authorized city divers did not arrive un til the boy had been underwater for thirty minutes. Id. They pulled him from the water, but he later died

. Id. Addressing the deputy sheriff’s conduct, the Seventh Circuit stated that “a citizen in peril for his life ha[s] a constitutional right that prevent[s] a police officer from cutting off private avenues of lifesaving rescue without providing an alternative.” Id. at 1432. The court also held that the right was clearly established at the time of the incident. Id. The court so held because “a f undamental tenet of [its] constitutional jurisprudence ” is that “ the state cannot arbitrarily assert its power so as to cut short a person’s life.” Id. at 1433. Applying that principle to the record facts, the court concluded that a reasonable officer in the deputy sheriff’s position would have known that he could not arbitrarily use his

without providing an alternative, we agree with the officers that the cases would not have given them fair warning that their conduct here was unlawful.11 authority to prevent private rescue efforts. Id. The court explained that “[t]here was simply no rational reason for [the deputy sheriff] to prefer ‘authorized’ but equ ally competent rescuers located away from the scene.” Id. The next factually similar case is Andrews v. Wilkins , 934 F.2d 1267 (D.C. Cir. 1991), abrogation on other grounds recognized by Atchi n son v. District of Columbia , 73 F.3d 418, 421 (D.C. Cir. 199 6). There, Andrews jumped into the Washington Channel as a police officer attempt ed to arrest him. Id. at 1269. Andrews swam across part of the Channel but then turned back towards the shore and began to tire. Id. The officer attempted to throw a life ring to Andrews, but it didn’t reach him. Id. Officers then saw a private boat approaching, and they hailed the boat to assist in rescuing Andrews. Id. After reaching Andrews , the boat owner told the officers that she needed to enter the water to

rescue him and that she had been trained to do so. Id. However, the officers directed her not to enter the water, stating that Andrews was an escaped prisoner and could be dangerous. Id. Approximately thirty minutes lat er, official rescuers arrived and pulled Andrews from the water

. Id. He was later pronounced dead

. Id. The D.C. Circuit recognized that Ross “held that police action deliberately or recklessly interfering with ongoing private rescue efforts may e stablish a constitutional
tort.” Id. at 1270. However, the D.C. Circuit found the facts in Andrews “much less troubling than those in Ross

. ” Id. at 1271

. Among other things, the court noted that the officers in Andrews “were concerned with Andrews’s bizarre behavior.” Id. In addition, the court concluded that even if the officers violated Andrews’s substantive due process rights when they interfered with the private rescue effort, the right was not clearly12 established “in a particularized sense.” Id. (alterations adopted) (quoting Brogsdale v. Barry , 926 F.2d 1184, 1191 (D.C. Cir. 1991)). It explained : While it should have been clear to the police that they could not “arbitrarily assert their power so as to cut short a person’s life,” it certainly could not have been clear to them that they were required to refrain from taking any action when a private citizen, drawn into a police rescue operation, was about to expose herself to substantial danger, of which she was no t completely aware. Id

. (internal citation omitted and alteration adopted) (quoting Ross , 910 F.2d at 1433). The final factually similar case is Beck v. Haik , No. 99

- 1050, 2000 WL 1597942 (6th Cir. Oct. 17, 2000) (unpublished). In Beck , a man jumped or fell from a bridge into a river. Id. at *1. City police officers and the city’s director of public safety arrived a few minutes later. Id. In addition, members of a group of trained civilian divers heard a report of the incident and went to the scene to assist in the rescue. Id. The volunteer divers told the public safety director that they were prepared to attempt a rescue. Id. However, the public safety director instructed them not to enter the water because, pursuant to a joint city and county p olicy, only the county dive team was authorized to conduct underwater

rescues. Id. The county dive team arrived thirty

- five minutes after the volunteer divers had offered to attempt a rescue. Id. at *2. They pulled the man from the water and attempted to resuscitate him , but he later died. Id. The Sixth Circuit agreed with Ross that “official action preventing rescue attempts by a volunteer civilian diver can be arbitrary in a constitutional sense if a state

- sponsored alternative is not a vailable when it counts.” Id. at *4. The court stated that Ross “pointed to” the conclusion that the public safety director’s conduct was unconstitutional, but it held13 that even if it was, he was entitled to qualified immunity because no Supreme Court or Sixth Circuit precedent clearly established that the Sixth Circuit would follow Ross

. Id. at *7.
We agree with the officers that t hese cases do not amount to a robust consensus of persuasive authority that would have given the m fair warning that their conduct violated Fijalkowski’s substantive due process rights. Only Ross expressly held that an officer violated a drowning person’s substantive due process rights by preventing private rescue efforts without providing an alternat ive

. Beck merely suggested that the public safety director did so. One case is not a robust consensus of persuasive authority. Moreover, the facts in Ross and Beck are distinct from those here in two key respects. First, the officer in Ross and the pub lic safety director in Beck prevented the private rescue efforts for approximately thirty and thirty

- five minutes, respectively. Second, neither the officer in Ross nor the public safety director in Beck had reason to believe that the drowning persons pos ed a danger to others. These cases would not have given the officers here fair warning that delaying Fijalkowski’s rescue for up to two

- and

a - half minutes, knowing that he may pose a danger to others, violated his substantive due process rights. The cir cumstances here are closer to those in Andrews . The re, the officers were concerned with Andrews’s bizarre behavior , and , although the private rescuer said she had14 rescue training, they believed that he posed a danger to her . And there, the court suggeste d that the officers ’ conduct did not rise to the level of that found unconstitutional in Ross

. 7 Accordingly , Ross , Beck , and Andrews would not have given the officers fair warning that delaying Fijalkowski’s rescue under the circumstances here violated his substantive due process rights.
But this does n’t end our inquiry

. Fijalkowski insists that the officers ’ conduct so patently violated the fundamental principle that “ the state cannot arbitrarily assert its power

so as to cut short a person’s life ,” Ross , 910 F.2d at 1433, that objectively reasonable officer s would have known their conduct was unconstitutional even without closely analogous case law

. We cannot agree

. Looking to the facts alleged in the complaint, we cannot say that the officers ’ conduct amounted to a patently arbitrary assertion of power. True, the complaint alleges that t he officers knew that Fijalkowski was at risk of drowning after being submerged for thirty seconds and that Brooks was able and equipped to rescue him. But th e complaint also alleges that the officers were aware that Fijalkowski’s inability to swim and his mental
state made him a risk of danger to others. And , they had seen him enter and exit the pool twice before on his own. Unlike in Ross , where “[t]here wa s simply no rational reason” for the officer to prevent the rescue efforts, id. , here there were such reasons. And

7 T he officers in Andrews were also concerned that the private rescuer didn’t know of the danger Andrews may have posed, while here, Brooks knew of Fij alkowski’s erratic behavior, mental state, and inability to swim. But, given the similarities that remain, we don’t think this difference would have given the officers fair warning that their conduct was unconstitutional

.15 ultimately, the officers allowed Brooks to rescue Fijalkowski after (at most) two

- and

- a half minutes, far less than the amount of time that had elapsed in Ross , Beck , and Andrews

. Accordingly, the complaint doesn’t allege conduct that amounts to a patent ly arbitrary assertion of power to cut short Fijalkowski’s life

. And this is so, even as we are mindful t hat at the motion to dismiss stage, we may not draw inferences against Fijalkowski

. We are also mindful that the rationale for the officers’ conduct isn’t alleged in the complaint, and we don’t make any inferences about that rationale here. We only concl ude that on its face, the complaint alleges facts belying the contention that the officers ’ conduct was a patent ly arbitrary assertion of power. We therefore affirm the district court’s dismissal on qualified immunity grounds of Fijalkowski’s substantive due process claim.

III. We next consider the district court’s dismissal of Fijalkowski’s gross negligence claim

. “We review de novo the grant of a motion to dismiss for failure to state a claim.” Bonds v. Leavitt , 629 F.3d 369, 385 (4th Cir. 2011).
A. Under Virginia law, g ross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Ellio t t v. Carter , 791 S.E.2d 730, 732 (Va.
201 6 ) ( quoting Cowan v. Hospice Support Care, Inc. , 603 S.E.2d 916, 918 (Va. 2004) ).
“Because ‘ the standard for gross negligence in Virginia is one of indifference, not16 inadequacy, ’ a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care.” Id

. ( alterations adopted ) (quoting Kuykendall v. Young Life , 261 F. App’x 480, 491 (4th Cir. 2008) (unpublished) (per cu riam)) . Ordinarily, the question of whether gross negligence has been established is a matter for the jury. Id

. However, when no reasonable juror could find that gross negligence has been established, the court must dismiss the claim. Id

. B. On appea l, Fijalkowski draws our attention to the officers’ conduct after he submerged himself for the third time and argues that this conduct amounts to gross negligence under Virginia law. We disagree and conclude that the facts alleged in the complaint show tha t the officers exercised some degree of care during that time

. 8 In particular, the officers came to the deep end of the pool and monitored Fijalkowski , they eventually permitted Brooks to rescue him , and they also assisted in th e rescue . Even if they wai ted too long to do so, we agree with the district court that the claim is one of inadequacy, not indifference. Accordingly, we affirm the district court’s dismissal of Fijalkowski’s gross negligence claim.

IV.

8 As a result, we need not ad dress the officers’ arguments that Fijalkowski can’t recover damages because he committed the common law crime of attempted suicide and that they aren’t liable because they did n’t owe Fijalkowski a special duty

.17 For the reasons given, the district court’s dismissal of Fijalkowski’s complaint is
AFFIRMED.