### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 08, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_____________________________

No. 00-11000

_____________________________ D. C. Docket N

os. 98-00456 CIV-F TM-22D and 99-00007-CIV-FTM -22D

LARRY NORMAN WADD ELL, as Personal Representative of

the Estate of Kr

istina Waddell , and in his ind ividu al capac ity, Plaintiff-Appel lant,

versus ERIK S. HEMERSON, GA RY LEONARD WHEELER, JR., Consolidated Plaintiffs-Appe

llants,

versus THE HENDRY COUNTY SHERIFF’S OFFICE, RONNIE LEE, in his individual and official capacity as Sheriff of Hendry County, Florida, SUSAN SIBBALD, in her indiv idual c apacit y, Consolidated Defendants-Appe

llees.2 ____________________________

No. 01-16032

____________________________ D. C. Docket N

os. 98-00456-CV-F TM-29 and 99-00007-CV-FTM LARRY NORMAN WADD ELL, as Personal Representative of

the Estate of Kr

istina Waddell , and in his ind ividu al capac ity, Plaintiff-Appel lant, ERIK S. HEMERSON, GARY LEONARD WHEELER, JR., Consolidated Plaintiffs-Appe

llants,

versus THE HENDRY COUNTY SHERI FF’S OFFICE, RO

NNIE LEE,

in his official capaci ty as Sher iff of He ndry Cou nty, Florid a and in his ind ividu al capac ity, SUSAN SIB BALD, in h er indi vidual capacit y, Defendants-Appe llees.

__________________________________ _______ Appeals from the United States District Court for the Middle Dist

rict of Florida

__________________________________ _______ (May 8, 2003)* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by

designation. 3 Before EDMONDSON, Chief Judge, CARNES and SILER * , Circuit Judges. EDMONDSON, Chief Judge: In this consolidated a

ppeal, Larry

Waddell, as per

sonal representati

ve of Kristina Waddell’s estate, Erik Hemerson, a nd Gary Wheeler (“Plaintiffs”) a ppeal the district court’s grant of summary judgm ent to Hendry County Sheriff’s Office, Sheriff Ronnie L

ee, Jr., and L

ieutenant Susan Sibba

ld (“Defenda

nts”) in an action pursuant to 42 U.S. C. § 1983. Plaintif fs also appeal the di strict court’s de nial of their motion for relief from judg ment. No reversible error has b een shown; we affir m.

BACKGROUND

In October 1997, Terry Garnto, a longtime resident of Clewiston, F lorida, was convicted of ba

ttery. In No

vember 1997, G

arnto was sentence

d to 364 days’ imprisonme

nt, reduced by 29-days’ cre dit for time se

rved in the Hendry

County Jail. While ser

ving his sentence as a

“trusty” i n the Hendry Cou

nty Jail, Gar

nto spoke with Sheriff

Lee of the Hendr

y County She

riff’s Offic e (“HCSO”

) about1 Garnto had been arrested 41 times and had abo ut 1 9 co nvi cti ons inc lud ing r obb ery, b urgl ary, escape, and bat ter y. Garnto’s driving record also reflected that he had been arrested and convicted for driving under the influence and reckless driving. 4 becoming a confidentia l informant on the illeg al drug trade in Hendry Cou nty. After Sheriff

Lee spoke with Ga

rnto, the matt

er was turned over

to HCSO Captain John Vetter and narco tics investigato rs Richard Notaro and Grad y Johnson, Jr. When Officer Notaro learned of Garnto’s extensive crim inal record 1 , Officer Notaro expressed c

oncern about using Ga

rnto as a confidentia

l informant. Captain Vetter, howeve

r, reasoned that G

arnto’s record w

as no worse than that

of confidential inform

ants used in federal

criminal prose

cutions and approved use of Garnto as a confide

ntial informan

t. In February 1998, Garnto was enrolled as a confidential informant. That same day H

CSO’s jail a

dministrator,

Lieutenant Sibbald

, released Gar

nto from jail under a “work

release” agree

ment. Under

the agreemen

t, Garnto worke

d at the HCSO’s Clew

iston substation by da

y and stayed

with his mother

at night. Pursuant to the work releas e agreement, Garnto signed a docu

ment promi sing to consume no drugs or alcohol. Lieutenant Sibbald maintains that she did not know Garnto was to be used as a confid ential informant for HCSO. Five days after his release, i n the early morning hours of 8 February 1998, a police officer found Garnto wandering arou nd Clewiston. Garnto was intoxicated.2 Altho ugh Hendry Cou nty officers, including Lieutenant Sibbald, contend that they had no knowledge of this outstanding warrant, evide

nce exists that Gar

nto had filed a request in jail to see a lawyer about an outstanding warrant in Palm Beac h County. 5 Upon discovering that

Garnto, in Palm

Beach County,

had an outstanding war

rant 2 for failure to appe

ar on a charge of a

ttempting to obtai

n a controlled substanc e by fraud, the offic er arrested Ga rnto. Garnto late

r was transferr

ed to a jail in Pal

m Beach Co unty. On 25 February

1998, Lieutenant S ibbald wrote to the P alm Beach Cou nty State Attorney’s Office. She requested that Garnto, if c onvicted in Palm Beach County, be ret

urned to Hendry

County to serve hi s sentence. Lieu tenant Sibbald wrote that Garnto was “working with us on several projects” and indicated that Garnto would be inc arcerated at the Hendry County

Jail. On 2 April 1 998, Garnto was sentenced to one -year im prisonment on the

Palm Beach C ounty charge. The judge recommended that Garnto be allowed to serve his sentence in Hendry County. On 19 April 1998, G

arnto was returne

d to Hendry Count

y and imm

ediately was returned to w

ork-release stat

us. Garnto continue

d to make control

led drug purchases for HCSO. One of the alleged drug traffickers HCSO had targeted was Jesus Sanchez. Be

cause HCSO had l

imited funds wi

th which to conduct its

drug6

operations, Offi

cer Notaro conta

cted Dennis Eads,

a Federal DEA

agent, to see if the DEA was interested in u sing Garnto to purch ase drugs from Sanchez. After observing G

arnto act in his conf

idential inform

ant capacity,

Agent Eads had Garnto sign an agreement to work with the DEA as a confidential informant. U

nder the supervision of

Agent Eads, Ga

rnto purchased drugs f

rom Marcus Dennis, a

n associate of Sanc

hez. After the

DEA signed Gar

nto as a confidential inform

ant, HCSO assis

ted the DEA by

providing equipme

nt and personnel to perfor

m controlled dr

ug purchases. Off

icer Notaro infor

med Garnto, however, that, if Garnto had infor mation pertaini

ng to Sanchez or De

nnis, Garnto needed to call Agen

t Eads. HCSO c

ontinued to use Garnto

for controlled drug purchases with othe

r suspected drug dea

lers. Garnto sought to introd

uce Agent Eads --

in an undercover ca

pacity -- to Dennis so that Agent

Eads could purchase

cocaine from

Dennis. At a debr

iefing on 3 July 1998, Gar

nto told Agent Eads th

at Garnto was pla

nning to spend the Fourth of July weekend

with Dennis at For

t Myers Beach

in neighboring Lee C ounty and that it might be possible to arrange a meeting between Agent Eads and Dennis at that time. A

gent Eads told Gar

nto to page him if

Dennis wished to m

eet. Agent Eads also asked Of

ficer Notaro if

he would be availabl

e to attend the possible7

meeting betwe

en Agent Eads and D ennis. Officer Notaro indicated he

would be available but stated that he had to check with his supervisor. On 4 July, Gar

nto went to Fort My

ers Beach with D ennis, Mary H arper and another woman. On 5 July, Garnto con sumed substantial qu antities of alcoho l. Upon leaving the beach, Garnto drove away in Harper’s car. G arnto later claimed that Sanchez began

following him a

nd that Garnto was on his way to page Agent Eads for instructi

ons when Garnto lost

control of the car.

Gantro crossed int

o the oncoming lane of traffic and ran into a vehicle occupied by Erik Hemer son, Gary Wheeler, and K

ristina Waddell.Waddell died as a result of the injur

ies she sustained in the co llision, and Hemerson and Wheeler suffered serious injuries. On 7 July 1998, HCSO terminated its confidential info rmant contract with Garnto. Plaintiffs filed against Defendants three separate complaints which were consolidated by the

district court. P laintiffs alleged t hat HCSO and She

riff Lee, in his official capac

ity, had violate

d Plaintiffs’ subs

tantive due process r

ights by unlawfully releasing Garn to, making him a paid agent, and failing to monitor him. Plaintiffs furthe

r alleged that HCS O, through its agent s Sheriff Lee a

nd Lieutenant Sibbald, had acted

with willful and w

anton disregard for

the safety of t

he public and wi th wil lful i ndiff erenc e to Pl ainti ffs’ ri ghts . Plai ntiff s also broug ht cla ims against Sheriff L

ee and Lieutenant S ibbald in their individua l capacities, all

eging3 In their third count, Plaintiffs raised state-law tort claims. The district court declined to

exercise pendent jurisdiction over these claims and dismissed them without prejud ice. Plaintiffs do not appeal this dismissa

l. 8 that they acted

with gross negligenc e and deliberate ind ifference to for

eseeable damage. 3 The district court

granted Defendan

ts’ motion for

summary judgment. T

he district court concl

uded that (1) no reas onable jury co uld find that Garnto was a state actor for the Defendants at the time of the traffic collision, (2) that Defendants’ co

nduct did not meet

the conscience-shoc

king standard necessa

ry to constitute a substantiv

e due process violati

on, and (3) that, e

ven assuming Defendants’ be

havior was wrongf

ul in a constitutional se

nse, this conduct wa

s not the legal cause of t

he accident. The

district court also d

etermined tha

t it would be an unwarranted an

d impermis sible extension of subst antive due process to

hold Defendants respons

ible for the losses c aused by the incid ent. Plaintiffs a

ppealed. While Appeal N

o. 00-11000 was befo

re this Court, Pla

intiffs filed a m

otion to expand the record on appeal to include Garnto’s testimony at his subsequent trial on the criminal

charges resulting f

rom the accide

nt. We denied the

motion, but granted Plaintiff

s a stay to allow

them to seek re

lief from the

district court pursua

nt to Fed.R.Civ.P. 60(b). In the district court, Plaintiffs filed their motion for relief4 Plaintiffs imply that Garnto’s contract as a confidential informant provided him with the use of

a car. Thi s view is incorr ect. The record reflects that the reference to a motor vehicle in the confidential informant records kept by HCSO simply refers to cars owned or used by the confidential informant. The 1982 Ford LTD involved in the collision was owned by a f riend of Garnto. 9 from judgm

ent under Rule 60(b)

based upon newly

discovered evidence

and fraud by Defendants.

The district court

denied the motion . Plaintiffs appe al.

DISCUSSION

Appeal No. 00-1100 0

Plaintiffs contend t

hat Defendants eng

aged in a deliberate

course of misconduct to ensure Garnto’s freedom and that the collision in this case was foreseeable in the

light of Garnto’ s criminal re cord, his propensity

for irresponsible intoxication, his bein

g sent to a beach par

ty with drug dea

lers, and his lack o f supervision. Plaint

iffs argue that Ga

rnto was an agent f

or HCSO and that t

he district court err

ed by concluding tha

t Garnto’s “

independent act” of drinking and driving insulated De fendants from their misconduc t. 4 We review a di strict court’s de cision to grant sum

mary jud gment de novo , viewing the evidence

and all reasonable inferences in the l ight most favora

ble to10

the nonmoving party. Chapman v. AI Transport , 229 F.3d 1012, 1023 ( 11th Cir. 2000). Federal R

ule of Civil Proced

ure 56(c) provides t

hat summar

y judgment shall be granted, “

if the pleadings, de

positions, answers to interrogatories, and admissions on file , together with the affidavits, if a

ny, show that the

re is no genuine issue as to any

material fa

ct and that the m

oving party is enti

tled to a judgment as a matter of law.” Fed.R .Civ.P. 56(c). We must take

seriously the Su

preme Court’ s caution against expa nding the concept of substan tive due process. See Collins v. City o f Harker Height s , 112 S.Ct. 1061, 1068 ( 1992) (“[T] he [Supreme] Court has alway s been reluctant to expand the concept of

substantive due proce ss because guideposts f or responsible decisionmaking in

this unchartered ar

ea are scarce a

nd open-ended. The

doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new gro und in this field .”) (internal citation omitted). “The Due Pr

ocess Clause was i

ntended to prevent gove

rnment offici

als from abusing their power, or employing it as an instrument of oppression.” County of Sacramento v . Lewis , 118 S.Ct. 1708, 1716 (1998) (internal

quotations and citations omitte

d). The substantive

component of the

Due Process Clau

se “protects individual liberty

against ‘certa

in government ac

tions regardless of t

he fairness of the procedures used to implement them.’” Collins , 112 S.Ct. at 106 8 (quoting11

Danie ls v. Wi lliams , 106 S.Ct. 662, 665 (1986)). But the Fourteenth Am

endment must not be used through section 1983 as a “font of tort law” to convert state tort claims into federal causes of action. See Neal ex rel. N eal v. Fulton County

Bd. of Educ. , 229 F.3d 1069, 1074 ( 11th Cir. 2000). “ Nothing in the language

of the Due Process Clause its elf requires the S tate to protect the l

ife, liberty

, and property of its citizens against invasion by privat e actors. The Cl

ause is phrased as a limitation on the State’s pow

er to act, not as a

guarantee of cer

tain minima

l levels of safety and security.” DeShaney v. Winnebago County Dep’t of Soc. Servs. , 109 S.Ct. 998, 1002-07 (1989). For a while, this Court had concluded th at state and local go

vernment entities could be held liable for substantive due process violations for their failure to protect victim

s from harm

caused by third pa

rties where the st

ate, through its affirmative acts, put the vi ctim in “special danger” of harm. See Cornelius v. Town of Highland Lake , 880 F.2d 348 (11th Ci r. 1989). In White v. Lem acks , 183 F.3d 1253, 1257-59 (11th Cir. 1999), we concluded, however, that the “special relationship” and “special danger” doctrines were superceded by the standard employed by

the Supreme C ourt in Collins , 112 S.Ct. 1061. Thus, conduc t by a government act

or will rise to the l

evel of a substantive

due process violation only if12

the act can be characterized as arbitrary or conscience shocking in a constitutional

sense. See Collins , 112 S.Ct. at 1070. The Supreme

Court has acknowle

dged that “the m

easure of what is conscience-shocking is no calibrated yard stick.” Lewis , 118 S. Ct. at 1717. We know for certain,

however, that a s

howing of negligence

is insufficient to m

ake out a constitutional due process claim. Lewis , 118 S. Ct. 1708, 1718 (1998). And even intentional wrongs se

ldom violate the Due Process Claus e. Acts “int ended to injure in some

way unjustif

iable by any

government inte

rest” are “m

ost likely to rise to the conscien ce-shocking level .” Id. But, even conduct by a government actor that would amount to an intentional tort under state law will rise to the level of a substantive due process violation only if it also “shocks the conscience.” Dacosta v. Nwachukwa , 304 F.3d 1045, 194 8 (11th Cir. 2002). “[O]nly the most egregi

ous official conduct

can be said to be arb

itrary in the constitutional sense.” Lewis , 118 S. Ct. at 171 6 (1998)(quotation and citation omitted). De

terminations of

what is egregious c onduct must not be m ade in the glow of hindsight; decisions made by a government actor must be egregious --that is, shock the conscie

nce -- at the tim

e the governmen

t actor made t

he decision. See e.g. DeShaney , 109 S.Ct. at 100 6-06 (noting that, be cause State had no constitutional duty

to protect child aga

inst his father’s

violence, its fail

ure to do5 We stress the phra se “at the very

least.” We do not ru

le out today t

hat the correct

legal threshold for substantive due pr

ocess liability

in a case like this one is actually far higher. For example, the standard could be that the go vernment official acted with “deliberate indifference to a substantial certainty of serious injury” or maybe that the g overnment official acted

“maliciously

and sadistically for the very purpos e of

creating a serious injury” or perhaps some differ ent standard. We feel comfortable

today that the standard we use today is the low point -- may well be too low a point -- for a possible sta

ndard in a case li

ke this one and that we can decide this case without being more definite about the law as an academic matter. 13 so--though calam

itous in hindsight--did not constitute a violation

of the Due Process Clause); see also Rodriguez v. Farr ell , 280 F.3d 1341, 1352-53 (11th Cir. 2002) (concluding that hindsight could not be used to judge police off

icer’s act of handcuffing suspect, but rather it was necessary to consider what the police officer knew or reasonably shou ld have known at the t ime of the act). In some cases,

a state official’ s deliberate indiff erence will esta

blish a substantive due process violatio n. But, “[d]e liberate indiffer

ence that shocks in one environment may not be so patently egregious in another, and [the] concern with preserving the

constitutional proport

ions of substantive due p rocess demands an exact analysis of circumstances before any abuse of power is condem ned as conscience shocking.” Lewis , 118 S.Ct. at 171 8-19. In this non-cus todial setting, a substantive due proc ess violation would, at the very lea st, require a show

ing of deliberate indiff

erence to an extre

mely grea t risk of serious inj ury to someo ne in Plaintiffs’ posit

ion. 5 See McClendon v. City of Columbia , 305 F.3d 314, 326 (5 th Cir. 2002) (stating

that Plaintiff wa

s required to dem

onstrate that “

the defendant14

state official at a minim

um acted with deliberate indifference toward the plaintiff”);

see also Nix v. Franklin Cou nty School Dist ., 311 F.3d 1373, 13 76 (11th Cir. 2002) (concluding that delib erate indiffere nce was insuffici

ent to constitute a due -process violation in a non-custo dial school setting). We conclude that this record will not allow a finding of such indifference. To act with deliberate indifference, a state actor must know of and disregard an excessive -- that i s, an extremely great -- risk to the victim’s health or safety. See McClendon , 305 F.3d at 326 n.8 ; see also Johnson v. Dallas In dep. School Dist. , 38 F.3d 198 , 202 (5th Cir. 1994)

. We examine in turn each of Def

endants’

acts.

A. The release of G

arnto from j ail

We first conside

r Defendants’ release of Gar nto from jail

before the termination of his sentence. Despite Garnto’s extensive criminal history a nd an outstanding warrant

in Palm Beac

h County, Def

endants released G

arnto from j ail on “work-rel

ease.” In additio

n, when Garnto w

as later arreste

d based upon a failure to appear

warrant in Palm

Beach County,

Defendants again r

eleased Garnto after mislea

ding Palm Beac

h County authoriti

es to believe that G

arnto would serve6 At the time of his Clewiston arrest, Garnto w

as in violation of the

conditions of his wo

rk release which required him to be

at his mother’s hou

se in the evenings and

to refrain from t

he use of alcohol

. 15 his sentence in that case concurrently with his pending sentence at the Hendry County Jail. 6 Although Hendry County officia

ls argued that Gar

nto completed his sentences on the Hendry County and Palm Beach County convictions on 26 May 1998, it appears tha

t HCSO gave Gar

nto improper good/

gain time cred

it and disregarded the manner in which the concurrent sentences were to be serv ed. One might find f

ault in Defendants’ behavior. But no subs tantive due process right exists t

o be protected gener

ally from the release from

confinement of persons convicted of crimes -- even if the release v iolates state law. See Lovins v. Lee , 53 F.3d 1208, 1209 (11th Cir. 1995). Furthermore, the record does not reflect Defendants knew a

bout and disregarded a

n extremely

great risk that Ga

rnto would drive while intoxica

ted and cause a fat

al car collision. A

lthough Garnto previo

usly had been convicted of driving while intoxicated, these offenses had occurred ten years earlie

r. The lapse of t

ime and Garnt

o’s maturing f

or a decade count in Defendants’ fa

vor. Moreover, a

lthough Garnto violate

d the terms of hi s release by wandering around Cl ewiston at night whi le intoxicated, he was not driving. We cannot say

that Defendants,

at the time of G

arnto’s release , were on notice that Garnto would very, ve ry probably cause an automo bile collision with7 To the extent that Plaintiffs attempt to allege that Lieutenant Sibbald was involved in making Garnto a confidential informant and allowing him to travel to Fort Myers, the record reflects no evidence that Lieutenant Sibbald was invol ved in the use of co nfi den tia l in for man ts i n an y way. Taking the evidence in the light most favorable to the Plaintiffs, the record r eflects, at most, that Lieutenant Sib

bald was aware

that Garnto was a

cting as a conf

idential informan

t. 16 serious injuries du e to his driving whi le intoxicated. See McClendon , 305 F.3d at 326. We recall that the pe rtinent co llision o ccurred sev eral months a fter Garnto ’s release. See Ruiz v. McDonnell , 299 F.3d 1173, 1183 (10th Cir. 2002) (in statecreated danger co

ntext stating that “ [a]ffirm ative conduct for pur

poses of § 1983 should typically involve conduct that imposes an immediate threat of harm , which by its nature has a limited range and duration”)

. The release in th is case is no constitutional tort.

B. The use of Garnto

as a confidential in

formant

Neither can we conclude that the decision to utilize Garnto as a confidential informant to m

ake controlled drug pu

rchases was so egr

egious as to establish a substantive due proce ss violation. 7 Although Garnto had an extensive criminal history and a history of substance abuse, we cannot s ay that Defe ndants’ use of Ga

rnto as a confidentia

l informant for controlled buys r

eflects such indiff

erence to an extre

mely grea t risk to the safety

of17

the public that this dec

ision -- when not view

ed in hindsight with the

results fully known -- “shocks the conscience.” Collins , 112 S.Ct. at 106 9-70 (noting that the Due Process Claus e was intended to pre vent government officials “f rom abusing [their] power, or employing it as an instrument of oppression”). A government interest is a dvanced by using conf idential informants. Combating unlawful dru gs is a legitimate and import ant government functio n. Confidential informants can be helpful in this endeavor. Some confidential informants have

blemishes on thei

r own records whi

ch make them

more accepta

ble to the criminal

element on whi

ch they are to i

nform. The government can not be expected to rely exclusi vely upon the virtuou s in enforcing the l aw. See United States v. Richar

dson , 764 F.2d 1514, 1521 ( 11th Cir. 1985); see also United States v. Simpson , 813 F.2d 1462, 1470 (9th Cir. 1987) (“It is unrealistic to expect law enforcement officers to ferret out criminals without the help of unsavory characters.”). Defendants did not authorize Garnto to perform his duties as a confidential informant while intoxicated. Instead, HCSO policy prohibited confidential informants fr

om conducting drug

purchases if they

had been ingesting alc oholic beverages. Nothi

ng in the record ref

lects that Defend

ants ever utilized G

arnto -- or anyone else --

as a confidential in

formant when he had been drinking or under the8 We doubt that the record supports that Garnto’s trip to Fort Myer s for th e Fourth of July weekend was an HCSO “undercover drug operati on.” Altho ugh HCSO initially recruited Garn

to as a confidential informant, as the amounts of cocain

e involved in

the Sanchez investigation increased, the controlled buys became pr ohibitively expensive for HCSO. Captain Vetter spoke to Federal DEA Agent Eads about the DEA becoming involved in the investigation. Garnto subsequen tly signed a con f idential informant agreement with the DEA. Garnto was instructed that, if he had information pertaining to San chez or Dennis, he

needed to call Ag

ent Eads. Althoug

h HCSO continued to

assist the DEA with t

he investigation

by supply

ing equipment an

d personnel,

Officer 18 influence of drugs , or that Garnto (before th e fatal collision) h ad ever earlier shown up to perform his confid ential informant dutie s while intoxicated

. Because Defenda

nts’ decision to use

Garnto as a confid

ential informa

nt did not present an extre

mely grea t risk that Garnto w

ould cause a deadly

automobile collision due to his intoxication, this decision does not present such an extraordinary

circumstance

that shocks the consci

ence in a way that amounts to a substantive due proce ss violation. See McClendon , 305 F.3d at 326 ; Brown v. Commonwe

alth of Pennsylva

nia, Dept. of H

ealth Emerge

ncy Med. Ser

vs. Training Inst. , 318 F.3d 473, 479 (3 d Cir. 2003) (concl uding that to state a c

ivil rights claim the harm ultim

ately caused ha

d to be foreseeable

and fairly dir

ect)

.

C. Trip to Fort Myers

Nothing in the record reflects that Sheriff Lee was aware of or had approved of Garnto’s tri

p to Fort Myers f

or the Fourth of July

weekend. 8 More importan t,Notaro -- because Garnto was the DEA’s informant for Sanchez and

Dennis -- no long

er listed his meetings with Garnto on his c ontact sheets. F

urthermore, alth

ough Offic er

Notaro indicated

to Agent Eads that Notaro was willing to assist at Fort My

ers Beach if ne

cessary, O

fficer Notaro a

lso stated that he woul d have to get approval from his supervisor. Garnto, however, never contacted Agent Eads. Still, we need not

decide this whose-informant-was-whose issue. Even if the weekend was an HCSO “undercover drug operation” the fatal car collision caused by Garnto’s driving

while intoxicated was not a

harm that was an e

xtremely great risk when the decision was made to allow Garnto to go to F

ort Myers.

9 Plaintiffs also ar

gue at length

that Garnto was an agent for HCSO at the time of the accident. Garnto is not a defendan

t. Plaintiffs acknowledge that in section 1983 actions, liability must be based on something more than a theory of respondeat superior. See Braddy v. Florida Dep’t of L abor and Employment

Sec. , 133 F.3d 797, 801 (11th Cir. 1998) (supervisor liability); Cuesta v. School Bd. of Miami-Dade County, Fla. , 285 F.3d 962, 966 (11th Cir. 2002)(municipal liability). 19 even assuming arguendo that Sheriff Lee implicitly condoned Garnto’s trip, such an act was not sufficien t to establish a con stitutional vio lation. See Lewis , 118 S.Ct. at 1716 (“ [O]nly the m ost egregious offici

al conduct can be sai

d to be ‘arbitrary in the constitutional sense’”) (quotation omitted). 9 The record does no t reflect that De fendants suggested, or even condoned, the

idea that Garnto sh

ould drive while intoxica

ted. Although Gar

nto had two previous co

nvictions for driving while intoxicated, the convictions had taken place ten years earlier. Neither does the record refle

ct that Garnto indic ated to Agent Eads and Officer Not aro that he, in the group involved, w

ould be the person drivi

ng to or around Fort My

ers. The record actually

reflects that Ga

rnto traveled to For

t Myers in a ca

r that belonged to one of his compan

ions. A fatal auto

mobile collision c aused by Garnto ’s drinking and driving was not an extremely great risk in decidi

ng to allow Garnto,

with10 We express no view about whether these Defendants are liable to Plaintiffs under Florida law. 20 others, to travel t

o Fort Myers Be

ach for the weeke

nd: Defendants did not

violate the Federal Constitu tion when the decisi on was made. McClendon , 305 F.3d at 326 ; Brown , 318 F.3d at 479 . Plaintiffs failed to demonstrate that this conduct was so conscious shocking tha t it violated the Consti

tution. In summar

y, we, in ci

rcumstances su

ch as these, are u

nwilling to expand constitutional law to

hold police departm

ents responsible for

the tortious acts of their confidential informants. No decision by Defendants in this case involved such an obviously ex

tremely gr

eat risk that Gar

nto would become

intoxicated and then drive an autom

obile and then crash i

nto another autom

obile causing serious injury as to shoc

k the conscience. W

e conclude that the di strict court proper ly determined tha

t Plaintiffs faile

d to establish a substan

tive due process viola

tion. 10

Appeal No. 01-1603 2

Plaintiffs contend t

hat the district cour

t abused its discreti

on by denying th

eir motion for reli

ef from judg

ment in the light o f the newly disc overed evidence and proof of fraud upon th

e court.11 Expedit reipublicæ ut sit finus litium: It is for the public good that there be an end of litigation. S.S. Peloubet, A Collection of L egal Maxims in L

aw and Equity

77 (1985). 21 We review the district court’s order denying re lief under Rule 60(b

) for abuse of discretion

. See Am. Banker Ins. Co. of Fla. v. Northwester n Nat’l Ins. Co. , 198 F.3d 1332, 1338 (11th Cir. 1999). For the court to grant relief based upon newly discovered evidence under Rule 60(b)(2), a

movant must

meet a five-

part test: (1) the e

vidence must be n

ewly discovered since the trial; (2) due diligence on the part of the movant to discover the new evidence m

ust be shown; (3) the e

vidence must not b e merely cumulative or impeaching; (

4) the evidence m

ust be materia

l; and (5) the evidenc e must be such that a new trial wou ld probably produce a n ew result. Toole v. Baxter Healthcare Cor

p. , 235 F.3d 1307, 1316 (11th Cir. 2000). “A motion for a new trial under Rule 60(b)(2)

is an extraordinar

y motion and t

he requireme

nts of the rule must be strictly met.” Id. Finality is a virtue in th e law. 11 To obtain relief from a final judgment based upon fraud under Rule 60(b)(3), the moving party

must prove by

clear and convincin

g evidence that the a

dverse party obtained the verd ict through fraud, misrep resentations, or ot her misconduct. See Frederick v. Kirby Tankships, Inc. , 205 F.3d 1277, 1287 ( 11th Cir. 2000). T he22

moving party

must also dem

onstrate that the con

duct prevented them

from fully presenting his cas e. See id. In support of their Rule 60(b) motion, Plaintiffs submitted (1) proffered testimo ny from Garn to that Agent Ea ds had p rovide d him $20 0 “drink ing mone y” for the weekend; (

2) an affidavit fr

om Ralph Cunningha

m, the Chief Investigator for the Office of the State Attorney for the Twentieth Circuit of Florida, stating that Garnto was being used as a confidential informant by both HCSO and the DEA as part of a joint drug task force and that HCSO had a financial stake in any forfeited assets that resulted from the task force operation; (3) a memo fr om an HCSO corporal, David H

arrison, stating tha

t he had withheld info

rmation from

the victims’ inve stigator; and the (4) depositions of Agents Eads and Magno reve aling the “full scope” of the arrangement between HCSO, DEA, and the Fort Myers Police Department. We first consider Garnto’s testimony, which w as given at Garnto’s criminal trial after the district court had granted summary judgm ent in this civil case. Even assuming that Garnto’s testimony is “new ly discovered,” we conclude that Plaintiffs faile

d to demonstrate

due diligence in obtai

ning the substance of t

his information. After the collisi on, an investigator f

or Plaintiffs obtai

ned a statemen

t from Garnto; they submitted the stateme nt to the district court before summary12 At the time Defendants sought to depose Garnto he was facing criminal charg es arising from the collision at issue in

this case. Garnto was tried on the criminal charges in April 2000, after the district court granted

summary judg

ment in this case . At his criminal trial, Garnto testified that Federal Agent Eads gave him money to f ina nce t he t rip . By t he w ay, Agent Eads denies that he gave Garnto “drinking money.”

13 That Plaintiffs, when a summary judgment motion was pending, acknowledge d that Garnto had a criminal trial in prospect at which new information might be revea led see ms worth me ntioning. Plaintiffs’ knowing about this possibility of

more information,

and not themselves

moving per Rule 56(f) or otherwise to stay a decision on summary jud gment unti l Garnto’s trial w as at an end, is basically th

e same as Plaintiffs saying to the district court, as it considered the summary judgment motion, that Plaintiffs “would play these cards,” that is, were willing to stand or fall on what they already had. 23 judgment was

granted. It was

when Defendants l

ater attempte

d to depose Garnto, that Garnto invoked hi s Fifth Amendm ent rights. 12 Before summary j udgment was granted, it was onl

y Defendants w

ho were compl

aining about insuffici

ent information from Garnto. At a time whe

n Defendant’s m

otion for summ

ary judgm

ent was pending and a trial in this case

was looming in th

e future, Defe

ndants moved to str

ike Garnto from Plaintif

fs’ witness list o

n the grounds that Def

endants had no opportunit y to depose Garnto. Pl

aintiffs opposed the m

otion pointing out that De fendants -- and Plaintiffs -- had access to other sta tements Garn

to provided to the police

after the accident. In distr

ict court, Plainti

ffs noted that Def

endants could seek an e

xtension of the discovery

cutoff or a stay

of the civil procee

dings pending the resolut ion of the criminal c

harges against Gar

nto if Defendants f

elt the stateme

nts Defendants had were not enough. 13 Plaintiffs never sought to stay the su mmary judgment24

proceeding. Before summary j udgment was granted, Plaintiffs never indicated dissatisfaction with the information the y had in hand from Garnto. In this context, Plaintiffs have no right to relief from the district court’s entry of summar

y judgment

based upon this “ne

wly discovered

” evidence. Bef

ore the entry of sum

mary jud gment, Plaint

iffs could have sought t

o depose Garnto, or

, in the alternative, request a continuance pursuant to Fed.R.Civ.P. 56(f), until after Garnto’s criminal trial. Plaintiffs instead chose to rely upon the statem ent obtained by their investiga

tor. They ca

nnot now persuasively complain that Garnto had additional evidence of which they were unaware and which might have helped them to avoid summary judgment. See Karak v. Bursaw Oil Corp. , 288 F.3d 15, 20 (1st Cir. 2002) (concluding that Plaintiff not entitled to relief under Fed.R.Civ.P. 60(b)(2), where

Plaintiff knew of

witness and chose not

to seek extension for discovery or fur

ther investigation); see also Parrilla-Lopez v. United States , 841 F.2d 16, 19-20 (1st Cir. 1988)(concluding that deposition testimony was not “new evidence” where plaintiff decided not to depose witness due to expense). Neither did the district court abuse its discretion by denying relief under Fed.R.Civ.P. 60(b)(3). It was Plaintiffs’ tactical decisions, not fraud by Defendants, that14 By concluding that Plaintiffs have failed to demonstrate due diligenc e, we do not imply that this evidence would h

ave changed th

e outcome of this

case. We doubt that it would. But we need not decide this issue. 25 prevented Plaintif fs from fully presenting thei r case. See Taylor v. T exgas Corp. , 831 F.2d 255, 259-260 (11th Cir. 1987). 14 The remainde

r of Plaintiffs’ “newly di scovered” evidence , including the affidavit of Ralph Cunningham, the depositions of Agents Eads and Magno, and the Harrison m

emorandum

, is not evidence tha

t would change the outc

ome of the

case. See Toole , 235 F.3d at 1316. This evidence seems pertinent only to whether Garnto was a county or federal confidential info rmant at the pertinent time. Plaintiffs also hav

e failed to dem

onstrate why th

ey could not have o

btained this information before the en try of summary judgment. We conclude that the district court di d not abuse its discret

ion by denying Plaintiffs’ motion for relief under Fed.R.Civ.P. 60(b)(2) & (3).

CONCLUSION

The district court

properly grant

ed Defendants sum

mary jud gment, concluding that Plaintiffs’ claims do not amoun t to a constitutio nal violation.26

Furthermore , the district cour t properly exer

cised its discretion by denying Plaintiff’s motion for relief under Rule 60(b). AFFIRMED.