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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

YOLANDA MARIE HERBERT, Personal

Representative of the Estate of MARIE

HERMINIE BARRON, Deceased,

Plaintiff, No. 09-CV-12314

vs. Hon. Gerald E. Rosen

DANNIE RAY BAKER, CITY OF

INKSTER, LT. THOMAS DIAZ and

OFFICER JOHN HANKINS,

Defendants.

_______________________________/

OPINION AND ORDER REGARDING THE CITY

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on February 25, 2011 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

I. INTRODUCTION

This Section 1983 case is presently before the Court on the Motion for Summary

Judgment filed by Defendants Thomas Diaz, John Hankins and the City of Inkster (the

“City Defendants”). Plaintiff has responded to Defendants’ Motion and Defendants have

replied. Having reviewed and considered the parties’ briefs, supporting evidence, and the

entire record of this matter, the Court finds that the pertinent facts and legal contentions

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 In Michigan, a person is legally intoxicated if his blood-alcohol content is .08. 

See M.C.L. § 257.625.

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are sufficiently presented in these materials, and that oral argument would not assist in the

resolution of this matter. Accordingly, pursuant to Eastern District of Michigan Local

Rule 7.1(f)(2), the Court will decide Defendants’ motion “on the briefs.” This Opinion

and Order sets forth the Court’s ruling.

II. PERTINENT FACTS

On November 9, 2007, Defendant Dannie Ray Baker appeared at the Inkster,

Michigan Police Department to serve a voluntary weekend incarceration pursuant to a

Judgment of Sentence imposed upon him in state court for driving with a forged drivers’

license. The voluntary weekender program is for misdeamnants who agree to voluntarily

report to jail on scheduled weekends. Baker was sentenced to serve 30 weekends. On the

date in question, Baker was scheduled to serve the 28th of these weekends.

Baker appeared at the Inkster Police Department at approximately 5:50 p.m. on

November 9th. However, immediately upon his appearance, the intake officers detected

alcohol on Baker’s breath. According to the undisputed testimony of Officer Douglas

Parsons and Lieutenant Diaz, other than the odor of intoxicants, Baker had no outward

signs of intoxication. He was able to walk, his speech was not slurred, and he was able to

carry on conversations. A breathalyzer test was subsequently administered which

indicated that Baker’s blood alcohol content was .09.1

 Both before and after the

breathalyzer test, Baker lied to the officers about drinking. Though he told the officers at

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the time that he had not been drinking, in his deposition, Baker testified that before

reporting to the Inkster Police Station, he stopped at Leon’s Liquor Store, which is near

the Police Station, purchased a pint of vodka, parked in the skating rink parking lot which

is on property adjacent to the police station, took some sleeping pills and drank the pint of

vodka. [See Baker 11/19/2008 Deposition, Plaintiff’s Ex. H, pp. 19-22.]

The Inkster Police Department has a policy of not admitting intoxicated

weekenders. Because Baker was intoxicated, he was not accepted for his voluntary

incarceration. Lieutenant Diaz asked Baker how he had gotten to the police station and

Baker told him he had been dropped off. [See Deposition of Thomas Diaz, Plaintiff’s Ex.

K, pp. 61-62.] Diaz testified that he directed Officer Hankins to escort Baker to the lobby

so that he could use the pay phone and make arrangements for a ride home. Id. at 62. 

Officer Hankins walked Baker down the hallway to the lobby and pointed out the pay

phone. [Deposition of John Hankins, Plaintiff’s Ex. D, p. 15-16.] Officer Hankins did

not wait to see whether Baker made the phone call. He testified that when they got to the

lobby, Baker went to sit down in one of waiting area chairs. Hankins testified that he

assumed Baker went to use the pay phone shortly thereafter because when he turned to

walk back into the hallway, out of his peripheral vision, through the lobby window he

saw Baker stand up and appeared to be headed toward the phone. Id.

Baker, however, did not call for a ride. Contrary to what Baker had told the

officers, Baker had driven himself to the police station and had parked his SUV in the

parking lot of the skating rink which was on property adjacent to the police department’s

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property. Baker simply walked out of the lobby and down the sidewalk to the skating

rink, and left in his own vehicle. No officer knew Baker had driven or saw Baker driving

a vehicle either arriving or departing from the police station.

A short while later, Inkster Police officers were dispatched to Michigan Avenue

and Henry Ruff Roads on a report of a car accident. When the officers arrived, it was

discovered that Baker was the driver of the SUV which struck Marie Barron’s vehicle

causing her death. An empty vodka bottle was found in the car.

Baker was thereafter taken to Annapolis Hospital where his blood-alcohol level

was tested again and this time it measured .17. [See Deposition of Inkster Police Chief

Gregory Gaskin, Plaintiff’s Ex. E, p. 48.]

Baker was subsequently tried and convicted by a jury on charges operating vehicle

on a suspended license, causing death; operating a vehicle while intoxicated causing

death; and manslaughter due to operation of a motor vehicle. On August 12, 2008, he

was sentenced to 15 years’ imprisonment.

On April 18, 2008, Plaintiff instituted this civil action. In her First Amended

Complaint, Plaintiff alleged Section 1983 claims against Defendants Diaz, Hankins and

the City of Inkster. She also alleged state law common law wrongful

death/negligence/gross negligence claims against Defendants Baker, Diaz and Hankins.

Discovery has closed in this matter and Defendants Diaz, Hankins and the City of

Inkster now move for summary judgment.

III. DISCUSSION

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A. STANDARDS APPLICABLE TO MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is proper if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule

56[] mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552 (1986). In deciding a motion brought under Rule 56, the Court must view the

evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434

F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on mere

allegations or denials, but must “cit[e] to particular parts of materials in the record” as

establishing that one or more material facts are “genuinely disputed.” Fed. R. Civ. P.

56(c)(1). Moreover, any supporting or opposing affidavits or declarations “must be made

on personal knowledge, set out facts that would be admissible in evidence, and show that

the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). Finally, “the mere existence of a scintilla of evidence that supports the

nonmoving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at

814 (alteration, internal quotation marks, and citation omitted).

B. PLAINTIFF HAS FAILED TO MAKE OUT A LEGALLY COGNIZABLE

SECTION 1983 CLAIM 

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Section 1983 provides a federal cause of action for civil damages against an

individual acting under color of state law who deprives another of “rights, privileges or

immunities secured by the Constitution of and laws.” 42 U.S.C. § 1983. In this case,

Plaintiff argues that Lieutenant Diaz and Officer Hankins violated the late Marie Barron’s

substantive due process rights under Fourteenth Amendment when they failed to protect

her from the drunk driver who caused her death by failing to insure that the Defendant

Dannie Ray Baker called someone else to drive him home from the Inkster Police Station

on November 9, 2007. Lieutenant Diaz and Hankins counter that no constitutional

violation occurred and that even if it had, they are protected by qualified immunity.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State

shall . . . deprive any person of life, liberty, or property, without due process of law.” 

U.S. Const., amend. XIV, § 1. However, “nothing in the language of the Due Process

Clause itself requires the State to protect the life, liberty, and property of its citizens

against invasion by private actors,” and the Supreme Court has refused to read into the

constitutional provision any such duty. DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 195,109 S.Ct. 998, 1003(1989). While “a State may through its

courts and legislatures, impose such affirmative duties of care and protection upon its

agents if it wishes,” such duties will not be “thrust upon them by this Court’s expansion

of the Due Process Clause of the Fourteenth Amendment.” Id. at 202-03, 109 S.Ct. at

1007.

In DeShaney the Court addressed a claim brought by a mother and her child under

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42 U.S.C. § 1983 against the county department of social services, alleging that the child

had been denied due process of law when the department failed remove the child from his

abusive father’s home. The state had taken temporary custody of the child, based on

suspicions of abusive circumstances; however, the state did not maintain custody of the

child and returned him back to his father’s home. The father thereafter beat the child so

severely that he suffered permanent brain damage and was rendered profoundly retarded. 

The defendants were granted summary judgment by the district court, and both the

Seventh Circuit and the Supreme Court affirmed. In so doing, the Supreme Court

reaffirmed that state officials are not liable for injuries resulting from violent acts by third

parties, explaining “our cases have recognized that Due Process Clauses generally confer

no affirmative right to government aid, even where such aid may be necessary to secure

life, liberty or property interests of which the government itself may not deprive the

individual.” Id. at 196, 109 S.Ct. at 1003.

The DeShaney Court, however, recognized one exception to this rule: “When the

State takes a person into its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility for his safety and

general well-being.” Id. at 199- 200, 109 S.Ct, at 1005-06. The Court explained that this

“affirmative duty to protect arises not from the State’s knowledge of the individual’s

predicament or from its expressions of intent to help him, but from the limitation which it

has imposed on his freedom to act on his own behalf.” Id. Accordingly, “it is the State’s

affirmative act of restraining the individual’s freedom to act on his own behalf -- through

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incarceration, institutionalization, or other similar restraint of personal liberty -- which is

the deprivation of liberty triggering the protections of the Due Process Clause, not its

failure to act to protect his liberty interests against harms inflicted by other means.” Id.

(internal punctuation omitted).

Since DeShaney, the Sixth Circuit has recognized a second exception to the

prohibition against holding public officials constitutionally responsible for private acts of

violence: 

Relying on the following language from DeShaney -- “[w]hile the State may

have been aware of the dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do anything to render him any

more vulnerable to them,” [489 U.S.] at 201, 109 S.Ct. 998 -- we have held

that when the State “cause[s] or greatly increase[s] the risk of harm to its

citizens . . . through its own affirmative acts,” it has established a “special

danger” and a duty to protect its citizens from that risk.

Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006), cert. denied, 546 U.S. 1166 (2007)

(quoting Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)). Under

this “state-created danger” exception, a state may be liable in non-custodial settings for

“affirmative acts. . . which either create or increase the risk that an individual will be

exposed to private acts of violence.” Kallstrom, supra, 136 F.3d at 1066.

To establish a “state created danger” claim, a plaintiff must show:

“(1) an affirmative act by the state which either created or increased the risk

that the plaintiff would be exposed to an act of violence by a third party: (2)

a special danger to the plaintiff wherein the state’s actions placed the

plaintiff specifically at risk, as distinguished from a risk that affects the

public at large; and (3) the state knew or should have known that its actions

specifically endangered the plaintiff.”

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Jones v. Reynolds, supra, 438 F.3d at 690 (quoting Cartwright v. City of Marine City, 336

F.3d 487, 493 (6th Cir. 2003)).

In this case, Plaintiff attempts to bring her claim under both DeShaney’s “custodial

relationship” theory and the Sixth Circuit’s “state created danger” exception.

1. THE DESHANEY CUSTODIAL OR “SPECIAL RELATIONSHIP” EXCEPTION

IS INAPPLICABLE HERE 

DeShaney’s custodial exception does not apply in this case because the decedent

was never in custody. The custodial exception triggers a constitutional duty to provide

adequate medical care to incarcerated prisoners, those involuntarily committed to mental

institutions, foster children, pre-trial detainees, and those under “other similar restraint of

personal liberty.” Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005) (quoting

DeShaney, 489 U.S. at 200). See also, Stemler v. City of Florence, 126 F.3d 856, 867-68

(6th Cir. 1997), cert. denied, 523 U.S. 1118 (1998). In Stemler, the court determined that

police officers violated the plaintiff’s decedent’s substantive due process rights when,

during the course of a traffic stop, they physically lifted her from a car in which she had

been riding against her will, and placed her in a truck driven by her abusive, intoxicated

boyfriend, who had a fatal accident shortly thereafter. The court found that the woman

was deprived of her liberty (and ultimately her life) without due process when the police

threatened to arrest her if she did not leave with her boyfriend and, subsequently,

physically placed her in his truck. The court determined that under these circumstances,

“the officers took the ‘affirmative act of restraining [the decedent’s] freedom to act on her

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[own] behalf,’ and consequently imposed upon themselves a duty to ensure that they were

not placing her in danger.” Id.

Plaintiff here conflates the issue of who it is that must be “in custody” so as to

create a custodial special relationship triggering the protections of the Due Process

Clause. As DeShaney and its progeny make clear, it is only when the plaintiff’s (or the

plaintiff-decedent’s) personal freedom to act on her own behalf that a duty to insure that

she is not placed in danger may be triggered. That Dannie Ray Baker -- a defendant --

may have been in the custody of the Inkster Police just prior to the fatal accident did not

create a “special relationship” with Plaintiff’s decedent so as to give rise to a duty to

insure her safety.

Plaintiff’s reliance on Davis v. Brady, 143 F.3d 1021 (6th Cir. 1998), cert. denied,

525 U.S. 1093 (1999), is misplaced. In that case, the plaintiff, Steverson Davis, after

having consumed a substantial amount of alcohol, attempted to enter the Carriage Town

Mission in Flint, where he had been living. The mission staff refused him entry due to his

inebriated condition. Davis became violent and broke some of the mission’s windows.

The mission staff called the police. Police officers responded to the call and arrested

Davis for intoxication and disorderly conduct and brought him to the Flint police station.

Davis was subsequently transferred to the county jail, but that facility was full. The desk

sergeant therefore instructed the officers to release Davis at the county jail if he was not

so drunk that he would be a hazard to himself. Disregarding these instructions, the

officers handcuffed Davis and placed him back in the squad car. The officers then drove

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Davis to an isolated 55-mile-per-hour speed limit area outside the city limits of Flint,

where there were few street lights and no sidewalk, and told Davis to find his own way

back into the city. A short while later, Davis was hit by a car, sustaining serious

permanent injuries. One of his legs was amputated, and he became a semi-quadriplegic.

Davis thereafter sued the Flint police officers under Section 1983 for violation of

his due process rights. The defendant officers argued that the DeShaney exception did

not apply; that they owed no duty of care to Davis because his injuries occurred after they

released him from custody and they did nothing to prevent Davis from caring for himself. 

The Sixth Circuit found no merit in the officers’ argument, but not because of the “just

released from custody” argument Plaintiff here proffers. Rather, the court held:

Language in [DeShaney] suggests that the state may owe a duty to

individuals in certain non-custodial settings:

While the State may have been aware of the dangers that Joshua

faced in the free world, it played no part in their creation, nor did it

do anything to render him any more vulnerable to them. That the

State once took temporary custody of Joshua does not alter the

analysis, for when it returned him to his father’s custody, it placed

him in no worse position than that in which he would have been had

it not acted at all; the State does not become the permanent guarantor

of an individual’s safety by having once offered him shelter.

489 U.S. at 201, 109 S.Ct. at 1006. Significantly, we have previously

suggested that this language in DeShaney stands for the proposition that “a

duty to protect can arise in a noncustodial setting if the state does anything

to render an individual more vulnerable to danger.” Gazette v. City of

Pontiac, 41 F.3d 1061, 1065 (6th Cir.1994). Unlike the situation in

DeShaney, moreover, the defendant officers in this case placed Davis in a

more dangerous situation than he was prior to their interference, when they

drove him outside the Flint city limits and abandoned him on a dark and

dangerous highway in an unfamiliar area.

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Likewise, the defendant officers’ contention that the release of Davis

from their custody terminated their duty is unavailing. The holding in

Stemler, 126 F.3d at 867-868, established that an officer’s duty exists even

after the custodial relationship has ended. In Stemler, this court determined

that police officers violated a woman’s substantive due process rights when

they took her from a car in which she had been riding and placed her in a

truck driven by her abusive, intoxicated boyfriend, who wrecked shortly

thereafter. The court found that the woman was deprived of her liberty (and

ultimately her life) without due process when the police threatened to arrest

her if she did not leave with her boyfriend and, subsequently, physically

placed her in his truck. Even though the woman was out of police custody

when she was killed, we held that the police had a duty to protect her by

focusing on the fact that she was in the officers’ custody at the time she was

forced into the truck. Id. at 869.

Just as the police in Stemler had a duty to the plaintiff because they

put her in harm’s way, the defendant officers here owed Davis a duty.

Based on Stemler, the fact that Davis’s injuries resulted after the defendant

officers released him from custody is not controlling. What is key is that the

defendant officers put Davis [i.e., the plaintiff] in a situation, while in

custody, and allegedly against his will, that caused his injuries.

143 F.3d 1025-26.

The foregoing makes clear that the DeShaney “custodial” or “special relationship”

theory of liability does not apply in this case. This leaves only the “state created danger”

as the only possible means for Plaintiff to establish her Section 1983 claim. As the Sixth

Circuit has noted, the state-created danger theory presents a very “demanding standard for

constitutional liability.” Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir.

1995).

2. PLAINTIFF HAS FAILED TO MAKE OUT A “STATE-CREATED DANGER”

CLAIM 

As indicated above, to establish a “state created danger” claim, a plaintiff must

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show:

“(1) an affirmative act by the state which either created or increased the risk

that the plaintiff would be exposed to an act of violence by a third party; (2)

a special danger to the plaintiff wherein the state’s actions placed the

plaintiff specifically at risk, as distinguished from a risk that affects the

public at large; and (3) the state knew or should have known that its actions

specifically endangered the plaintiff.”

Jones v. Reynolds, supra, 438 F.3d at 690.

(a) Plaintiff Has Failed to Show that the Defendant Officers Engaged in a Cognizable

“Affirmative Act” 

Plaintiff argues that the Defendants’ failure to insure that Baker was not driving

the evening of November 9, 2007 created a danger to the Plaintiff’s decedent. While it is

true that “a duty to protect can arise in a non-custodial setting if the state does anything to

render an individual more vulnerable to danger,” Gazette v. City of Pontiac, 41 F.3d

1061, 1065 (6th Cir. 1994), the Sixth Circuit has made clear that a “failure to act is not an

affirmative act under the state created danger theory.” Jones v. Reynolds, supra, 438 F.3d

at 691 (police officers who arrived at the scene of a drag race before the race and had the

opportunity to prevent it from the beginning but failed to do so held not to have

committed an affirmative act subjecting them to liability under the state created danger

theory); see also Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003)

(leaving an intoxicated man in the parking lot of a convenience store near a busy highway

was not an affirmative act giving rise to a duty to protect the man from the danger of

being hit by a truck) Schroder v. City of Fort Thomas, 412 F.3d 724, 728-29 (6th Cir.

2005) (failing to respond to parental complaints about speeding drivers in a specific

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residential neighborhood was not an affirmative act); Jones v. Union County, 296 F.3d

417, 431 (6th Cir. 2002) (failing to serve an ex parte protection order on an abusive

spouse was not an affirmative act); Sheets v. Mullins, 287 F.3d 581, 588-89 (6th Cir.

2002) (failing to pursue and investigate a domestic-disturbance call held not to be an

affirmative act); Weeks v. Portage County Executive Offices, 235 F.3d 275, 279 (6th Cir.

2000) (failing to call an ambulance for an obviously injured citizen was not an affirmative

act); Robinson v. Twp. of Redford, No.04-1117, 2005 U.S.App. LEXIS 15003 (6th Cir.,

July 20, 2005) (failure of police to insure that intruder had left the premises after the

report of a break-in held not to be an affirmative act).

As noted in Jones v. Reynolds, “[w]hether the conduct of government officials in

some cases should be treated as a failure to act or as action ‘may be a difficult question in

the abstract.’” 438 F.3d at 692 (quoting Bukowski v. City of Akron, 326 F.3d 702, 709

(6th Cir. 2003). Nevertheless, the Sixth Circuit “ha[s] always treated governmental

conduct as falling on the inaction side of the line when it does not create or increase the

risk of peril posed by the private actor.” Id. (citations and internal punctuation omitted.)

In this regard, in determining whether a police officer’s conduct increased the risk of

peril, “the question is not whether the victim was safer during the state action, but

whether she was safer before the state action than she was after it.” Jones v. Reynolds,

supra (quoting Cartwright, 336 F.3d at 493). The issue thus framed is entirely consistent

with DeShaney. As explained by the Sixth Circuit:

Although in DeShaney the state returned Joshua to the ultimate aggressor,

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the DeShaney Court explicitly rejected the idea that such acts met the state

action requirement. The court in DeShaney was not merely assuming that

state actors did not contribute to the hazards faced by Joshua, but it was also

holding that the act of returning someone to the same dangers that existed

status quo ante does not satisfy the state-action requirement.

Bukowski v. City of Akron, 326 F.3d at 709.

In Koulta v. Merciez, 477 F.3d 442 (6th Cir. 2007), the estate of a motorist who

was killed in a collision with a drunk driver sued the City of Centerline and three

individual Centerline police officers under Section 1983 for violation of the decedent’s

due process rights. In that case, Chrissy Lucero went to the house of her ex-boyfriend,

Frank Offrink, hoping to reconcile with him. Offrink was not there and after waiting a

short while in her car in Offrink’s driveway, she left the house to purchase some liquor,

then returned and started drinking. After feeling a little buzzed, Lucero left again and

went to another convenience store and purchased a 40-ounce bottle of Colt 45 Malt

Liquor. She again returned to Offrink’s house and tried to reach him on his cell phone to

no avail. She then took a Paxil (anti-depressant) and drank the rest of the second bottle of

liquor. After attempting to find Offrink at other locations, Lucero returned to Offrink’s

house, pounded on the door and tried to climb up the trellis. Offrink’s mother, who

resided with her son, called the Centerline Police Department and three officers

responded to the call.

After checking the license plate on Lucero’s car, the officers learned that it was

expired. They questioned Lucero and Offrink’s mother who told the officers that she

wanted Lucero removed from her property. The officers ordered Lucero to leave. They

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did not, however, cite her for having expired license plates, did not conduct any

investigation into her driving record, and did not administer a sobriety test. They simply

told Lucero that she needed to just “get over it,” accept that Offrink was “with someone

else,” and “go home” and gave her “10 seconds to get out of [t]here.” 477 F.3d at 444.

Lucero drove from Offrink’s house and “a dozen minutes or so” after speaking for

the last time with the police, she crashed into Sami Koulta’s vehicle, killing him instantly. 

Id.

Koulta’s estate filed suit. The district court denied the defendants’ motion for

summary judgment. Finding that the plaintiff failed to establish that the officers “created

or increased” the risk of harm to the plaintiff’s decedent, the Sixth Circuit reversed:

The risk of harm in this case was that Lucero’s drinking and driving

would injure someone. As a matter of law, Koulta’s estate has failed to

show that the officers “created” or “increased” that risk. Before they

arrived on the scene, Lucero (by her own admission) already had gotten in

her car four times four times to drive after she got a “little buzzed” from the

first 40-ounce beer she consumed: once to drive to the store to get the

second 40-ounce beer; once to drive back to the Offrink’s house after

buying the beer; once to drive to the house of a friend of Frank Offrink’s,

all while finishing the second 40-ounce beer, throwing the empty bottle out

of the window and taking a Paxil; and once more to return to the Offrink’s

house. On this record, the officers did not “create” or “increase” the risk

that Lucero would drink and drive. Lucero’s proclivity to engage in risky,

and illegal, behavior had blossomed long before the officers arrived on the

scene.

The officers’ failure to administer a breathalyzer test or otherwise to

determine the extent of Lucero’s drinking. . . did not “create” or “increase”

the danger of Lucero drinking and driving -- that predated their arrival on

the scene. . . . The claimant cannot maintain that Lucero never would have

been drinking and driving that night but for the officers’ conduct -- given

her acknowledged behavior before they arrived. And the claimant cannot

maintain that Lucero would not have driven to the scene of the accident but

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for the officers’ conduct. . . . Nothing prevented [Lucero] either (1) from

driving down the block, then calling a cab or waiting to drive the rest of the

way home after becoming sober or (2) from asking the officers for

assistance in getting home.

In the final analysis, Lucero’s admitted proclivity to drink and drive

that evening placed Koulta (and other people using the roadways) in as

much danger before the officers arrived as after.

477 F.3d at 446 (internal citations to the record omitted).

As in Koulta, here, the admitted testimony of Defendant Baker was that he drank a

pint of vodka before going into the police station. Therefore, even construing the

Defendant officers’ conduct in failing to insure that Baker used the pay phone in the

lobby to call for a ride as an “affirmative act,” because Baker would have posed the same

risk to Plaintiff’s decedent before having any contact with the Defendant officers in the

police station as he did after he left, Plaintiff cannot establish that such an affirmative act

either created or increased the risk to which the plaintiff’s decedent would be exposed.

(b) Plaintiff Has Failed to Satisfy the “Special Danger” Requirement

Plaintiff also has failed to establish a “special danger.” A special danger exists

“where the state’s actions place the victim specifically at risk, as distinguished from a risk

that affects the public at large.” Jones v. Reynolds, 438 F.3d at 696 (quoting Kallstrom v.

City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998)). As the Jones court observed:

In the only cases where we have recognized a “state created danger,” the

government could have specified whom it was putting at risk, nearly to the

point of naming the possible victim or victims. See Caldwell v. City of

Louisville, 120 Fed. Appx. 566, 573 (6th Cir. 2004) (concluding that where

the threat posed by an abusive husband was only to his wife, the state action

“placed the victim specifically at risk”); Waller v. Trippett, 49 Fed. Appx.

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2

 To the extent that Plaintiff here argues that the Court should find a “special

danger” because the decedent was in a small defined group of potential victims, i.e., only

those motorists on the same street as Baker, “a plaintiff cannot merely. . . name a more

particular subclass of the public as the group to which the government owed a duty,”

such as similarly-situated motorists. “[Motorists] are still the public.” Kennerly v.

Montgomery County Bd. of Comm’rs, 257 F. Supp. 2d 1037, 1044 (S.D. Ohio 2003). In

18

45, 50 (6th Cir. 2002) (concluding that public employees working in a

prison kitchen were a “limited and specifically definable group,” satisfying

the special-danger requirement); Duvall v. Ford, 187 F.3d 635 (6th Cir.

1999) (dismissing on grounds of no affirmative act but acknowledging

specific endangerment where a prisoner incarcerated for abusing his wife

escaped and fired shots into the trailer where she was living, injuring a

family member); Kallstrom [v. City of Columbus], 136 F.3d [1066,] 1067

[(6th Cir. 1998)] (releasing the personnel files of undercover officers,

including information about their families and homes, to defense attorneys

specifically endangered the officers and their families).

Where by comparison the victim was not identifiable at the time of

the alleged state action/inaction, we have held that a § 1983 suit may not be

brought under the “state created danger” theory. See Schroder v. City of

Fort Thomas, 412 F.3d 724, 729 (6th Cir. 2005) (failing to enforce or lower

the speed limit on a residential street “did not create a ‘special danger’ to a

discrete class of individuals (of which the Schroders’ son was a member),

as opposed to a general traffic risk to pedestrians and other automobiles”);

Jones v. City of Carlisle, 3 F.3d 945, 949-50 (6th Cir. 1993) (holding that

an epileptic driver was “no more a danger to [the plaintiff] than to any other

citizen on the City streets”); Janan v. Trammell, 785 F.2d 557, 560 (6th Cir.

1986) (holding that the release of an inmate on parole, who eventually

murdered a citizen, did not violate the Due Process Clause because “there is

[no] showing that the victim, as distinguished from the public at large faced

a special danger”). . . .

438 F.3d at 696-97.

It is clear from the foregoing that Plaintiff cannot establish the requisite “special

danger” to Decedent Marie Barron to satisfy the second element of a state created danger

claim.2

 Therefore, Plaintiff cannot establish that the Defendant officers violated the late

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Schroder, supra, the court found no special danger despite the fact that Mrs. Schroder

had been campaigning for a reduced speed limit or better enforcement of the current

speed limit on a particular stretch of a residential street on which her family lived and

despite the fact that the boy killed by the speeding motorist was Schroder’s son because

the threatened group -- people who lived on the street -- was not sufficiently “discrete.” 

412 F.3d at 729.

19

Marie Barron’s substantive due process rights under Fourteenth Amendment.

C. PLAINTIFF HAS NOT SHOWN A VIOLATION OF A CONSTITUTIONAL

RIGHT THAT WAS “CLEARLY ESTABLISHED” AT THE TIME OF THE

OFFICERS’ ACTION/INACTION 

Defendants Diaz and Hankins raised the defense of qualified immunity in their

affirmative defenses and now argue it in seeking entry of summary judgment in their

favor.

Qualified immunity shields public officials who perform discretionary functions

from the necessity of defending against tort liability so long as their conduct does not

violate clearly established rights of which a reasonable official would have known. See

Fisher v. Harden, 398 F.3d 837, 842 (6th Cir.), cert. denied, 546 U.S. 1075 (2005). The

doctrine is designed to “avoid excessive disruption of government and permit the

resolution of many insubstantial claims on summary judgment.” Harlow v. Fitzgerald,

452 U.S. 800, 818 (1982). It protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 353, 341 (1986). Qualified

immunity is an affirmative defense; once asserted, the “burden of proof is on the plaintiff

to show that the defendant[s] [are] not entitled to qualified immunity.” Armstrong v. City

of Melvindale, 432 F.3d 695, 699 (6th Cir. 2006) (citing Sheets v. Mullins, 287 F.3d 581,

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3

 In some Sixth Circuit cases, the Court of Appeals occasionally has employed a

three-step qualified immunity analysis, adding a third step to the inquiry “whether the

plaintiff has offered sufficient evidence ‘to indicate what the official allegedly did was

objectively unreasonable in light of the clearly established constitutional rights.’” See

e.g., Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004), cert.

denied, 544 U.S. 975 (2005); Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). 

However, in cases subsequent to Saucier, the Supreme Court has not formally broken up

the two steps prescribed by Saucier into three steps, see e.g., Brosseau v. Haugen, 543

U.S. 194, 125 S.Ct. 596 (2004); Groh v. Ramirez, 540 U.S. 551, 563, 124 S.Ct. 1284

(2004), and since the two-step approach comports with the Supreme Court’s most recent

qualified immunity cases, it is this approach that the Court will apply here.

20

586 (6th cir. 2002)).

Whether qualified immunity applies turns on the “objective legal reasonableness”

of the official’s action, viewed on a fact-specific, case-by-case basis. Id. (citing O’Brien

v. City of Grand Rapids, 23 F.3d 990, 999 (6th Cir. 1994)). To analyze claims of

qualified immunity, the court uses a two-part test “(1) whether, considering the

allegations in a light most favorable to the party injured, a constitutional right has been

violated, and (2) whether that right was clearly established.” Estate of Carter v. City of

Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)).3

 “The contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640, 107 S.Ct. 3034 (1987). In order for the law to be “clearly established,” the

law must “truly compel (not just suggest or allow or raise a question about), the

conclusion. . . that what the defendant is doing violates federal law in the circumstances.” 

Beard v. Whitmore Lake School Dist., supra, 402 F.3d at 607 (quoting Saylor v. Bd. of

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21

Educ., 118 F.3d 507, 515-16 (6th Cir. 1997) and Lassiter v. Ala. A & M Univ. Bd. of

Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994)). If the controlling law is not clearly

established, an official cannot be liable, because “a reasonable person would not be

expected to know how to structure his conduct to avoid liability.” Mendoza v. Block, 27

F.3d 1357, 1361 (9th Cir. 1994). “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” Saucier, supra, 533 U.S.

at 202 (emphasis added). See also, Armstrong v. City of Melvindale, supra, (“In

undertaking this inquiry, we do not assess the right violated at a high level of generality,

but instead, we must determine whether the right [is] ‘clearly established’ in a more

particularized sense. . . .”)

Applying these standards here, as set forth above, Plaintiff has not established a

violation of a constitutional right. But even assuming arguendo that she has, Plaintiff has

not shown that this right was “clearly established.” No authority from the Supreme Court

or the Sixth Circuit that existed at the time of the incident complained of compels the

conclusion that, by failing to insure that Defendant Dannie Ray Baker called someone

else to drive him home from the Inkster Police Station on November 9, 2007, the officers

committed a legally cognizable affirmative act when they did not create or increase the

danger to Marie Barron specifically. Qualified immunity, therefore, protects Defendants

Diaz and Hankins from liability on Plaintiff’s § 1983 claims against them.

D. AS THE INDIVIDUAL OFFICERS’ CONDUCT DID NOT VIOLATE

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PLAINTIFF’S CONSTITUTIONAL RIGHTS, PLAINTIFF’S CLAIM OF

MUNICIPAL LIABILITY ALSO FAILS 

Having concluded that Plaintiff has not established a violation of the decedent’s

constitutional rights, Plaintiff’s municipal liability claim also must be dismissed. See

Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002). It is well-settled that

where a municipality’s liability is alleged on the basis of the unconstitutional actions of

its employees, it is necessary to show that the employees inflicted a constitutional harm. 

City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571 (1986) (“”[N]either

Monell [v. Department of Social Services of City o f New York, 436 U.S. 658, 98 S.Ct.

2018 (1978)]. . . nor any other of our cases authorizes the award of damages against a

municipal corporation based on the actions of one of its officers when in fact the jury has

concluded that the officer inflicted no constitutional harm.”) Simply stated, Heller stands

for the proposition that a “city cannot not be held responsible for a constitutional violation

which could have occurred, but did not.” Garner v. Memphis Police Dept., 8 F.3d 358,

365 (6th Cir. 1993), cert. denied, 510 U.S. 177 (1994). Because no constitutional

violation has been shown, Defendants will also be granted summary judgment on

Plaintiff’s Section 1983 claim against the City of Inkster.

E. MICHIGAN’S GOVERNMENTAL IMMUNITY STATUTE PROTECTS

DEFENDANTS DIAZ AND HANKINS FROM LIABILITY ON PLAINTIFF’S

STATE LAW CLAIMS 

Plaintiff also has alleged state law claims of gross negligence against Defendants

Diaz and Hankins. These defendants, however, are protected by governmental immunity. 

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4

 The operation of a police department is a governmental function. See Hill v.

Saginaw, 155 Mich. App. 161 (1986).

23

Michigan’s governmental immunity statute, M.C.L. § 691.1407, provides in relevant part:

(2) Except as otherwise provided in this section, and without regard to the

discretionary or ministerial nature of the conduct in question, each officer

and employee of a governmental agency, each volunteer acting on behalf of

a governmental agency, and each member of a board, council, commission,

or statutorily created task force of a governmental agency is immune from

tort liability for an injury to a person or damage to property caused by the

officer, employee, or member while in the course of employment or service

or caused by the volunteer while acting on behalf of a governmental agency

if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably

believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a

governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not

amount to gross negligence that is the proximate cause of the injury or

damage.

* * *

(7) As used in this section:

(a) “Gross negligence” means conduct so reckless as to demonstrate a

substantial lack of concern for whether an injury results.

M.C.L. § 691.1407(2),(7)(a).

There is no dispute that, at the time of the conduct complained of, Officers Diaz

and Hankins were government employees acting within the scope of their authority for a

governmental agency which was discharging a governmental function.4

 Therefore, they

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24

are immune from liability unless their conduct amounted to gross negligence which was

the proximate cause of Marie Barron’s death. M.C.L. § 691.1407(2)(c). An exception to

governmental immunity is to be narrowly construed. Maskery v. Univ. of Mich. Bd. of

Regents, 468 Mich. 609, 614, 664 N.W.2d 165 (2003).

The “gross negligence” exception to qualified immunity requires that the conduct

of the defendant be the proximate cause of the plaintiff’s injury or damages. M.C.L. §

691.1407(2)(c). “‘The’ proximate cause” means “the one most immediate, efficient, and

direct cause of the injury or damage.” Robinson v. City of Detroit, 462 Mich. 439, 462,

613 N.W.2d 307 (2000). In Robinson, the Michigan Supreme Court expressly overruled

Dedes v. Asch, 449 Mich. 99, 521 N.W.2d 488 (1994), which had previously held that

“the proximate cause” as used in subsection (2)(c) of § 691.1407 meant “a” proximate

cause:

As to subsection (c), in Dedes, supra at 107, 521 N.W.2d 488, this Court

effectively interpreted “the proximate cause” in subsection (c) to mean “a

proximate cause.” The Court further explained that “the” proximate cause

does not mean “sole” proximate cause. Id. We overrule Dedes to the extent

that it interpreted the phrase “the proximate cause” in subdivision (c) to

mean “a proximate cause.” The Legislature’s use of the definite article

“the” clearly evinces an intent to focus on one cause. The phrase “the

proximate cause” is best understood as meaning the one most immediate,

efficient, and direct cause preceding an injury.

* * *

Further, recognizing that “the” is a definite article, and “cause” is a

singular noun, it is clear that the phrase “the proximate cause” contemplates

one cause. Yet, meaning must also be given to the adjective “proximate”

when juxtaposed between “the” and “cause” as it is here. We are helped by

the fact that this Court long ago defined “the proximate cause” as “the

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25

immediate efficient, direct cause preceding the injury.” Stoll v.

Laubengayer, 174 Mich. 701, 706, 140 N.W. 532 (1913). The Legislature

has nowhere abrogated this, and thus we conclude that in M.C.L. §

691.1407(2)(c); MSA 3.996(107)(2)(c) the Legislature provided tort

immunity for employees of governmental agencies unless the employee’s

conduct amounts to gross negligence that is the one most immediate,

efficient, and direct cause of the injury or damage, i.e., the proximate cause.

462 Mich. at 458-62.

Thus, in Robinson, the Court held that the police officers were immune from

liability for injuries sustained by passengers in vehicles fleeing from the police when the

fleeing car caused an accident, because the officers’ pursuit of the fleeing vehicles was

not “the proximate cause” of the injuries sustained by the plaintiffs. “The one most

immediate, efficient, and direct cause of the plaintiffs’ injuries was the reckless conduct

of the drivers of the fleeing vehicles.” Id. at 462.

As in Robinson, in this case the one most immediate, efficient and direct cause of

Marie Barron’s death was the reckless driving of Dannie Ray Baker. The Defendant

officers’ conduct in failing to insure that Baker got someone else to drive him home, even

if it amounted to “gross negligence”, was not the proximate cause of Marie Barron’s

death. Therefore, Defendants Diaz and Hankins are immune from liability. Accordingly,

summary judgment will be entered in favor of Defendants on Plaintiff’s state law

wrongful death claims.

CONCLUSION

For all of the foregoing reasons,

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26

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment

[Dkt. # 63] is GRANTED. Accordingly,

IT IS FURTHER ORDERED that Plaintiff’s claims against the City of Inkster, 

Lieutenant Thomas Diaz and Officer John Hankins are DISMISSED, in their entirety,

with prejudice.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: February 25, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record

on February 25, 2011, by electronic mail and upon Dannie Ray Baker, #698162, Kinross

Correctional Facility, 16770 S. Watertower Drive, Kincheloe, Michigan 49788 by 

ordinary mail.

s/Ruth A. Gunther 

Case Manager

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