Leath et al v. City of Knoxville, Tennessee et al

Filing 30

MEMORANDUM OPINION AND ORDER; Defendant Randall Smith's Motion for Summary Judgment 8 is hereby GRANTED. Plaintiffs shall file a supplemental memorandum on or before October 17, 2013, showing cause why the Court should no t enter judgment in favor of City of Knoxville and Officer Artymovich based on the Courts holding herein. Defendants may file a response not later than October 31, 2013, with any reply due not later than November 14, 2013. Signed by District Judge David L Bunning on 9/25/13. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CIVIL ACTION NO. 11-382-DLB
MYSTI BREEZ LEATH, deceased, by her next of kin,
STEVE and TINA LEATH

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

CITY OF KNOXVILLE, et al.

DEFENDANTS
*** *** *** ***

Plaintiffs bring this civil rights action under 42 U.S.C. § 1983 on behalf of their
deceased daughter against the City of Knoxville and two Knoxville Police Officers. Plaintiffs
assert that the officers, acting under the color of state law, were deliberately indifferent to
their daughter’s serious medical need in violation of her constitutional rights.

Officer

Randall Smith has moved for summary judgment on this claim (Doc. # 8), which has been
fully briefed (Docs. # 26, 28), and is ripe for review. For the following reasons, the Court
will grant Officer Smith’s motion for summary judgment.
I.

FACTUAL BACKGROUND

In the early morning hours of August 15, 2010, Mysti Leath, Jessica Moore and
another individual returned to an apartment at 525 Renford Road in Knoxville, Tennessee
from a night of partying that included drinking alcohol, and taking Oxycontin and Xanax.
(Doc. # 24-1). At some point after they returned, Leath and Moore began fighting. Leath’s
dog—a pit bull—intervened and bit Moore on the arm, causing significant bleeding.
Thereafter, Monica Garcia entered the apartment and confronted Leath; Garcia knocked
1

her to the floor, straddled her, and began choking her. With her hands around Leath’s
neck, Garcia threatened, “that’s it, I’m going to kill you.” (Id. at ¶ 5).
At approximately 4:45 a.m., City of Knoxville Police Officers Defendants Randall
Smith and Jason Artymovich responded to a disturbance call at the apartment. Upon
arriving, the officers found Leath, Moore, Garcia and a fourth individual—Melanie
Goin—inside the apartment. It was apparent from bumps and marks on Leath’s and
Moore’s body that they had been fighting. However, after taking statements from each of
the individuals present, the officers were unable to determine who was the initial
aggressor.1 The officers, therefore, chose not to make an arrest.2
During the course of the officers’ inquiry, they determined that Leath was not on the
lease of the apartment and did not otherwise have a legal right to be there. Therefore, they
advised Leath that she had to leave. But because Leath was intoxicated and did not have
a valid driver’s license, Officer Smith “offered to transport Leath to another destination that
would be safe for her.” (Doc. # 8-1 at ¶ 4) (emphasis added). Leath accepted the offer.
At approximately 5:22 a.m., Leath “voluntarily entered the backseat of Officer
Smith’s patrol car and they proceeded towards [her] requested destination.” (Id. at ¶ 5)
(emphasis added). Audio from the seventeen minute ride to Leath’s parents’ residence
was captured by the dash camera in Officer Smith’s vehicle. As Officer Smith was pulling
1

The substance of only one statement made to officers is contained in the record. Moore “told the
officers that [she] had been bitten by a dog belonging to [Leath] and [Garcia] and [she] showed them [her]
bleeding wound.” (Doc. # 24-1 at ¶ 8). While the Court recognizes that the statement is in the record, the
Court finds that the statement has no relevance to the pending motion for summary judgment.
2
According to Ms. Moore, the officers were “quite aloof and nonchalant” during their exchange with
the females. (Doc. # 24-1 at ¶ 10). Moore described them as “smirking, giggling, [and] smiling” with “their
body language inicat[ing] . . . that they had little concern for the preceding events.” (Id.). The officers
“expressed no interest in [Moore’s] physical condition or that of [Leath], or [Garcia] for that matter.” (Id.).
Rather, the officers “were clearly entertained by an apartment full of drunk lesbian women.” (Id.).

2

out of the apartment complex, Leath asked the officer “where your generosity came from
this evening?” — apparently referring to the officer’s decision not to arrest her. (See Doc.
# 10 at 5:23:20 a.m.). Officer Smith explained that he was “sure [Moore] had a lot do with
that fight just as much as you did. That’s why I didn’t want to take you to jail and not take
her.” (See id. at 5:23:35 a.m.). Leath responded, “well I understand that, and I appreciate
that.” (See id. at 5:23:45 a.m.).
Over the course of the seventeen minute ride, Officer Smith and Leath discussed
a variety of topics. Leath asked Officer Smith to roll down the rear window; he obliged.
Officer Smith then asked Leath about her previous arrests (See id. at 5:24:53 a.m.),
prompting a five-minute conversation between the two about Leath’s criminal history. After
a minute-and-a-half lull in the conversation, Leath sought advice from Officer Smith: she
asked whether her friend, Monica Garcia, committed theft of an automobile by refusing to
give her back the keys to her vehicle. (See id. at 5:31:15 a.m.). Officer Smith responded
to Leath’s question and then turned the conversation to Leath’s upbringing, including where
she grew up and her relationship with her parents.
As Officer Smith neared Leath’s parents’ residence, he called on Leath to provide
directions. First, though, he asked her whether her parents were home, to which Leath
responded “yes sir.” (See id. at 5:33:40 a.m.). Leath then told Officer Smith to stay in his
current lane and “take a left up here at this light, right here at this light.” (See id. at 5:34:07
a.m.). While Officer Smith sat at the red light waiting to take a left, Leath told the officer
that her parents would not be happy with her when she got home. (See id. at 5:34:15
a.m.). Officer Smith then took a left and proceeded to drive for approximately two minutes
before Leath instructed him to turn right. (See id. at 5:36:30 a.m.). Leath then advised that
3

the next turn would be in approximately one-quarter mile. Leath, however, failed to tell
Officer Smith to make the turn because, as she explained, Officer Smith “had me talkin’.”
(See id. at 5:37:55 a.m.). Leath quickly realized the mistake and had Officer Smith turn
around. After driving a short distance—which took no more than twenty seconds—Leath
instructed Officer Smith to turn left into her parents’ neighborhood and directed him to their
house.
Officer Smith and Leath arrived at her parents’ residence at approximately 5:39 a.m.
Leath knocked on the front door and rang the doorbell, but her parents did not answer.
She explained to Officer Smith that her parents likely could not hear her because her father
suffered from sleep apnea and her mother took mediation for insomnia. She proposed that
she would try to call her parents to wake them. (See id. at 5:44:03 a.m.). Officer Smith
responded, “Call ‘em, I can’t have you wandering out here on the street because you’ve
been drinking.” (See id. at 5:44:05 a.m.). Rather than call, Leath promised Officer Smith
that she could use a spare key hidden on the side of the residence to get inside. She also
promised, “I won’t be out here, sir” (Id. at 5:44:18 a.m.), suggesting that she would not be
out on the street. Satisfied with her promises, Officer Smith returned to his police cruiser
and drove away at 5:45 a.m. During his entire time with Leath, Officer Smith never placed
her in handcuffs, advised her that she was under arrest, or charged her with a crime.
Approximately forty-five minutes after Officer Smith departed, Leath was killed in a
tragic single-vehicle accident.3 At the time, she was a passenger in her own vehicle driven
3
What happened between 5:45 a.m. and 6:30 a.m. is unclear from the record. The only evidence
that shows what might have happened comes from an affidavit of Christopher Ahlers, which was based on
his observations of the Leaths’ residence the following morning. According to the affidavit, Ahlers arrived at
the Leaths’ residence during the day-light hours on July 15, 2010. He was a friend of the Leaths who was
caring for their dogs while they were away on vacation. When he arrived, Ahlers found two new dents in a

4

by Monica Garcia. According to a Tennessee Uniform Traffic Crash Report, Garcia ran the
vehicle off the road and crashed head-first into a tree. (Doc. # 8-4). The report listed a
number of factors that contributed to the wreck: Garcia had been drinking, Leath somehow
interfered with Garcia’s driving, and Garcia was reckless or negligent in her driving. (Id.).
Leath was twenty-three years old at the time of her death (See Doc. # 10 at 5:37:30 a.m.).
As a result of the foregoing, Mysti Leath’s parents, Steve and Tina Leath, filed this
§ 1983 action on her behalf against the City of Knoxville, as well as Officers Jason
Artymovich and Randall Smith in both their individual and official capacities. The Complaint
alleges that the officers, acting under the color of state law, were deliberately indifferent to
Mysti Leath’s serious medical needs. Additionally, the Complaint alleges that the City of
Knoxville failed to supervise, train and control the officers, which amounted to a deliberate
indifference to and reckless disregard for Mysti Leath’s constitutional rights.
II.

ANALYSIS

A.

Standard of Review

Summary judgment is appropriate if “the movant 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). In deciding a motion for summary judgment, the court must
view the evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
“moving party bears the burden of showing the absence of any genuine issues of
material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). The

pickup truck parked in the driveway; two blue contact lenses on the driveway; gouge marks on the gate to the
backyard; a purse, pill bottles, a debit card, identification card, and earring thrown about the backyard.
5

moving party may meet this burden by demonstrating the absence of evidence
concerning an essential element of the nonmovant’s claim on which it will bear the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once
the movant has satisfied the burden, the nonmoving party must “do more than simply
show that there is some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co., 475 U.S. at 586, it must produce specific facts showing that a genuine issue
remains. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). In doing so, the
“nonmoving party has an affirmative duty to direct the court’s attention to those specific
portions of the record upon which it seeks to rely to create a genuine issue of material
fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). If, after reviewing the record in its
entirety, a rational fact finder could not find for the nonmoving party, summary judgment
should be granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th
Cir. 1998).
B.

Deliberate Indifference to a Serious Medical Need

Officer Smith argues he is entitled to summary judgment on the lone claim against
him in Plaintiffs Complaint: “Defendant[ ] . . . Smith acted under color of state law and
violated [Leath’s] clearly established rights under the United States Constitution and were
deliberately indifferent to the Plaintiffs’ decedent’s serious medical needs.” (Doc. # 1 at ¶
12). In their complaint however, Plaintiffs have not specifically pled which Constitutional
Amendment provides this right. Because Plaintiff was not incarcerated at the time of the
events involved herein, Plaintiffs must be asserting a substantive due process claim under
the Fourteenth Amendment challenging the medical care that Officer Smith provided/or
failed to provide to Leath. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
6

243 (1983) (recognizing that the Fourteenth Amendment, and not the Eighth Amendment,
requires the government to provide for the serious medical needs of pretrial detainees).
Plaintiffs’ claim will be addressed accordingly.
A pretrial detainee’s substantive due process rights are violated if a state official is
deliberately indifferent to the detainee’s need for medical attention.

Blackmore v.

Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). This right, though, is only afforded
to those in custody. Baker v. City of Detroit, 217 F. App’x 491, 494-95 (6th Cir. 2007);
Jones v. Union County, TN, 296 F.3d 417, 427-28 (6th Cir. 2002). The government is
under no affirmative obligation to care for the life, liberty and property of free citizens, with
limited exception. DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 196
(1989).
Here, Leath was never in custody in the early-morning hours of August 15, 2010.
“The overarching prerequisite for custody is an affirmative act that restrains the ability of
an individual to act on [her] own behalf.” Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir.
2005). None of the facts of-record remotely suggest that Officer Smith, or any other officer,
restrained Leath in any way. Rather, the record evidence indicates that Leath was told she
had to leave the apartment; Officer Smith offered to take her wherever she wanted to go;
Leath accepted the offer and asked Officer Smith to take her to her parents’ residence; she
voluntarily entered Officer Smith’s vehicle; and she was never placed in handcuffs or
otherwise restrained. In fact, Leath’s own statements to Officer Smith indicate that she
entered the officer’s vehicle under her own free will. Shortly after getting in the vehicle, she
asked Officer Smith “where [his] generosity came from this evening?” (See Doc. # 10 at
5:23:20 a.m.). Officer Smith responded by explaining why he chose not to arrest her,
7

prompting Leath to thank him. These facts, construed in Plaintiffs’ favor, do not show that
police applied physical force to Leath, physically subdued her, or rendered her helpless.
See Cutlip v. City of Toledo, 488 F. App’x 107, 114 (6th Cir. 2012). As such, Leath was
never in custody.
This conclusion is supported by the Sixth Circuit’s decision in Cartwright v. City of
Marine City, 336 F.3d 487 (6th Cir. 2000). In Cartwright, officers stopped a man who was
walking on the side of the road and offered him a ride. Id. at 489. With the man in the car,
the officers then drove to a nearby convenience store for a prisoner pickup. Id. When they
arrived at the store, officers advised the man that he would not be allowed to remain in the
car with the prisoner unless he consented to a pat down. Id. The man refused the pat
down so the officers left him at the store and drove away. Id. Approximately two hours
later, the man was run over by a truck and found dead lying in the middle of a road. Id. In
addressing a substantive due process claim brought on behalf of the deceased man, the
Sixth Circuit held that the man was not in custody because the officers “merely offered to
give him a ride.” Id. at 492. The same can be said for the present case: Officer Smith
merely offered to give Leath a ride. And just as the Sixth Circuit found in Cartwright, Leath
was not in custody here.
In disagreement with this conclusion, Plaintiffs argue that Leath was in custody
because she “was directed by the officers . . .to leave.” (Doc. # 26 at 3-4). While that fact
may be true, it says nothing about whether Leath was in custody. Ordering an individual
to leave a premises does not deprive the individual of her ability to care for herself and,
therefore, does not amount to custody. Foy v. City of Berea, 58 F.3d 227, 232-33 (6th Cir.
1995).
8

Plaintiffs also argue that Leath was in custody because she was “kept in a moving
police vehicle which the Court may take judicial notice is equipped with a screen separating
the officer from the passenger, as well as doors that cannot be opened by the passenger.”
(Doc. # 26 at 3-4). This argument has two problems. First, Plaintiffs mischaracterize the
evidence by stating that Leath was “kept in a moving police vehicle.” (Id.) (emphasis
added). “Kept” implies that she was held against her will. As previously explained, the
facts do not support this connotation whatsoever; Leath entered the car voluntarily and
appreciated Officer Smiths’ generosity in taking her home. Second, despite Plaintiffs’ bald
assertion, the Court cannot take judicial notice of the fact that Officer Smith’s vehicle was
“equipped with a screen separating the officer from the passenger, as well as doors that
cannot be opened by the passenger.” (Id.). Judicial notice is only appropriate where a fact
is universally known or “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). While many police
cruisers have the features Plaintiffs describe, they are not present in all cruisers. Because
the fact is not necessarily true in this instance, it would be inappropriate for the Court to
take judicial notice of the fact for purposes of adjudicating the summary judgment motion.
In the end, neither of the “facts” proffered by Plaintiffs change the Court’s conclusion that
Leath was not in custody and, therefore, Officer Smith did not have a duty to provide for her
medical needs.
Assuming, arguendo, that Leath was in custody, Officer Smith cannot be liable for
being deliberately indifferent to her serious medical needs. “A constitutional claim for denial
of medical care has objective and subjective components.” Blackmore v. Kalamazoo Cnty,
390 F.3d 890, 895 (6th Cir. 2004). “The objective component requires the existence of a
9

‘sufficiently serious’ medical need.” Id. (quoting Farmer v. Breenan, 511 U.S. 825, 834
(1994)). “In contrast, the subjective component requires a plaintiff to allege facts which, if
true, would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then
disregarded the harm.” Phillips v. Roane Cnty. Tenn., 534 F.3d 531, 540 (6th Cir. 2008).
Without expressing an opinion on the objective component, Plaintiffs have failed to put forth
evidence to satisfy the subjective component of their deliberate indifference claim.
At best, Plaintiffs have established that Leath was intoxicated at the time of her
encounter with Officer Smith. According to the affidavit of Ms. Jessica Moore, an individual
with Leath earlier in the evening, Leath had consumed several shots of alcohol and
Oxycontin and/or Xanax at some point during the night. However, despite consuming
alcohol and drugs, she engaged in a lengthy conversation with Officer Smith, was able to
intelligently respond to questions, and successfully guided Officer Smith to her parents’
residence. In short, Leath’s responsive behavior would have given Officer Smith no
indication that she was intoxicated to the point that she required medical care.
In a factually analogous case, the Sixth Circuit has held that intoxication by itself is
insufficient to put an officer on notice that an individual needs medical attention. In Meier
v. County of Presque Isle, an individual sued police officers for being deliberately indifferent
to his serious medical needs by failing to take him to the hospital for his intoxication. 376
F. App’x 524, 529 (6th Cir. 2010). The officer knew that the individual had a blood alcohol
content of 0.31, which the officer described as “pretty high.” Id. The Sixth Circuit held that
the individual’s “intoxication by itself–even at the extreme level indicated by the BAC–was
insufficient to put [the officer] on notice that [the individual] needed medical attention.” Id.
10

This was particularly so, the court explained, because the individual “cooperated,
communicated effectively, and walked unassisted.” Id.
The Sixth Circuit’s decision in Meier is both applicable and persuasive. Unlike the
officer in Meier, Officer Smith never knew Leath’s blood alcohol content. While the record
indicates he knew Leath had been drinking, there is no indication that Officer Smith knew
how much alcohol or drugs she had consumed. Nonetheless, as in Meier, Leath was
cooperative and communicated effectively, and she gave no indication that she needed
medical attention.
Plaintiffs attempt to rebut this conclusion with Officer Smith’s own statement. As he
and Leath were standing outside her parents’ residence, Officer Smith said, “I can’t have
you wandering out here on the street because you’ve been drinking.” (See id. at 5:44:05
a.m.). While this statement shows that he had some concern for her “wandering” the
street, it does not show a subjective recognition that Leath needed medical care.
Ultimately, Plaintiffs have failed to establish the subjective component of their deliberate
indifference claim. As such, Officer Smith is entitled to judgment as a matter of law.
C.

Substantive Due Process Claim Under Exceptions to Deshaney

Although Plaintiffs’ Complaint only challenges Officer Smith’s alleged deliberate
indifference to Leath’s serious medical needs, the parties’ briefing suggests that Plaintiffs
are also challenging Officer Smith’s failure to protect Leath from being involved in the
automobile accident that ultimately took her life. Like the deliberate-indifference-to-aserious-medical-need claim, this, too, is a substantive due process claim. Facts alleged
within the Complaint and developed during discovery support this latter claim, but the
Complaint does not specifically raise it. Thus, it is questionable whether Plaintiffs would
11

even be entitled to recover on this failure-to-protect theory. However, assuming that the
claim has been properly pled, the evidence of record does not establish that Officer Smith
violated Leath’s substantive due process rights in this regard.
In DeShaney v. Winnebago County Department of Social Services, the Supreme
Court held that “[a]s a general matter . . . the State’s failure to protect an individual against
private violence simply does not constitute a violation of the Due Process Clause.” 489
U.S. 189, 197 (1989). This rule comes with two exceptions. The first exception –recognized by the DeShaney Court — imposes upon the State the affirmative duty to
protect an individual when the State has so restrained the liberty of the individual that it
renders her unable to care for herself. Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir.
2006) (citing DeShaney, 489 U.S. at 200). The second exception—recognized by the Sixth
Circuit based on dicta from DeShaney—imposes an affirmative duty on the State to protect
an individual when it has caused or greatly increased the risk of harm to its citizens through
its own affirmative acts. Id. Plaintiffs have failed to establish a constitutional violation
under the first exception because, as the Court has previously held, see supra Part II(B),
Leath was never in custody during the early morning hours of August 15, 2010. Thus, the
Court’s analysis will focus on the second exception, known as the “state created danger”
exception. See Jones, 438 F.3d at 690.
The state created danger exception has three elements that Plaintiffs must establish:
“(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 action 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
12

specifically endangered the plaintiff.” Cartwright v. City of Marine City, 336 F.3d 487, 493
(6th Cir. 2003). At a minimum, Plaintiffs have failed to establish the first and third elements.
1.

Affirmative Act

In determining whether an officer engaged in an affirmative act, the Sixth Circuit
instructs courts not to engage in the “metaphysical question of whether officer behavior
amounts to affirmative conduct or not,” but rather to consider “whether the victim was safer
before the state action than [she] was after it.” Koulta v. Merciez, 477 F.3d 442, 445-46
(6th Cir. 2007) (quotations omitted). Here, Officer Smith transported Leath from an
apartment where she had just been in a fight to her parents’ residence. During the fight,
Garcia knocked Leath to the ground, choked her, and threatened to kill her. Leath
sustained marks and bumps on her body as a result. There is no evidence that suggests
Leath’s parents’ residence was more dangerous than the situation she faced at the
apartment. In fact, there is no evidence that the residence was dangerous at all.
Plaintiffs disagree with the Court’s conclusion that Officer Smith did not leave Leath
in a more dangerous situation. In support, they rely on Officer Smith’s own statement to
Leath that “I can’t have you wandering out here on the street because you’ve been
drinking” (See id. at 5:44:05 a.m.) to show that she was left in a dangerous environment.
But Plaintiffs’ reliance on Officer Smith’s statement is misplaced. At best, it shows that
Leath was potentially subject to harm if she was left to walk on the street. That, though,
was not the dangerous condition that caused her injury; she was killed after deciding to get
in a vehicle with an intoxicated driver.
The problem with Plaintiffs’ claim is that they attempt to hold Officer Smith
accountable for a danger that he did not create. Officer Smith left Leath at her parents’
13

residence after Leath assured him that her parents were home and she could gain entry
with a spare key hidden in the backyard. Thereafter, Leath made the decision to get in the
vehicle with Garcia, who was apparently intoxicated. Officer Smith had nothing to do with
Leath’s subsequent decision to ride with Garcia or Garcia’s decision to drive while
intoxicated; he did not force Leath to ride in the vehicle with Garcia nor did he leave her
with no other option but to ride with Garcia. Moreover, if Leath needed a ride, none of
Officer Smith’s actions prevented her from calling a sober driver. Therefore, Officer Smith
did not cause or increase the risk that Leath would be exposed to the harm that ultimately
killed her.
This conclusion is supported by the Sixth Circuit’s decision in Koulta v. Merciez, 477
F.3d 442 (6th Cir. 2007). There, officers responded to a woman’s call that an unwanted
person was on her property. Id. at 444. Upon arriving, the suspect explained why she was
on the property and advised police that she had drunk a 40-ounce bottle of malt liquor
earlier in the evening. Id. The officers eventually ordered the suspect to leave the
premises. Id. The suspect drove away and, shortly thereafter, crashed into Sami Koulta’s
vehicle, killing him instantly. Id. Koulta’s estate sued the police under the state-created
danger exception to DeShaney. Id. at 445.
The Sixth Circuit affirmed summary judgment in favor of the officers, finding that the
officers had not created or increased the risk that the suspect would drive and injure
someone. Id. The court found that the officers only told the suspect to “go home” but
never required her to drive if she lacked the capacity to do so. Id at 446. Additionally, the
court held that nothing prevented the suspect from “driving down the block, then calling a
cab or waiting to drive the rest of the way home or from asking the officers for assistance
14

in getting home.” Id. The same can be said for the case sub judice: Officer Smith never
required Leath to ride with an intoxicated driver nor was she prevented from finding an
alternative, safer driver.
The record unfortunately suggests that Leath’s own actions may have contributed
to her death. Leath made her own independent decision to ride with Garcia after a night
of drinking and consuming drugs. Additionally, the police report from the accident indicates
that Leath somehow interfered with Garcia’s ability to drive, which played a part in causing
the fatal accident. (See Doc. # 8-4 at 2). Simply put, Officer Smith cannot be held liable
for failing to protect Leath from acting on her own poor choices.
2.

Knew or Should Have Known

Plaintiffs have also failed to establish that Officer Smith knew or should have known
that his actions specifically endangered Leath. To satisfy this element, Plaintiffs “‘must
demonstrate that the state acted with the requisite culpability to establish a substantive due
process violation under the Fourteenth Amendment.’” McQueen v. Beecher Comm. Schs.,
433 F.3d 460, 469 (6th Cir. 2006) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 510
(6th Cir. 2002)). “In settings that provide the opportunity for self reflection and unhurried
judgment,” such as the setting Officer Smith faced when he left Leath in her parents’ front
yard, “[t]he guiding principle seems to be that a deliberate-indifference standard is
appropriate.”

Id. (quotations omitted).

Deliberate indifference is akin to subjective

recklessness, “which means that the official must be both aware of facts from which the
indifference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. (quotations omitted). The record is devoid of any fact that shows
Officer Smith knew or should have known that Leath was subjected to harm.
15

First, Officer Smith had no way of knowing that Leath would leave her parents’
residence. In fact, based on Leath’s own representations and promises, Officer Smith was
led to believe that Leath’s parents were home, she would get inside the house with a spare
key, and she would not stay out on the street. Second, there are no facts to suggest that
Officer Smith knew Garcia would later choose to drive while intoxicated. Finally, and most
importantly, there are no facts to suggest that Officer Smith knew or should have known
that Leath would get in a vehicle with Garcia. Instead, based on the reports of the fight and
Leath’s representations during the ride to her parents’ residence, Officer Smith was led to
believe that Leath and Garcia were at odds. Garcia had previously pushed Leath to the
ground, choked her and threatened to kill her. Garcia had also refused to give Leath the
keys to her car. For each of these reasons, Officer Smith was not deliberately indifferent
to the harm that killed Leath.
In an attempt to rebut this conclusion, Plaintiffs return to Officer Smith’s oft-quoted
statement to Leath that “I can’t have you wandering out here on the street because you’ve
been drinking” (See id. at 5:44:05 a.m.) as evidence that Officer Smith knew of the harm.
But Plaintiffs’ reliance on this statement is again misplaced. Officer Smith apparently
recognized that Leath could be hurt if she was left to roam the streets. But that is not the
harm that killed her: she was killed in a single-vehicle accident after choosing to ride with
an intoxicated driver. This third prong of the state created danger exception requires
Plaintiffs to prove that Officer Smith was deliberately indifferent to the harm that caused the
injury. They have failed to satisfy this burden by demonstrating that Officer Smith was
aware of some other unrelated harm.

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III.

CONCLUSION

This is unquestionably a tragic case. However, construing the facts in the light most
favorable to Plaintiffs, Officer Smith is not responsible for the tragedy. He did not violate
Leath’s substantive due process rights because he neither took Leath into custody such
that he incurred the affirmative duty to care for her, nor did he leave her in a place of grave
danger. Instead, he generously gave Leath a ride to her parents’ residence and left her
when he was assured she could get inside the home. Unfortunately, Leath was later killed
after choosing to get in the vehicle with an intoxicated driver who wrecked into a tree.
Officer Smith had nothing to do with this unforeseeable accident. Accordingly,
IT IS ORDERED as follows:
(1)

Defendant Randall Smith’s Motion for Summary Judgment (Doc. # 8) is

hereby GRANTED;
(2)

Pursuant to Federal Rule of Civil Procedure 56(f), Plaintiffs shall file a

supplemental memorandum on or before October 17, 2013, showing cause why the Court
should not enter judgment in favor of City of Knoxville and Officer Artymovich based on the
Court’s holding herein. Specifically, Plaintiffs shall address (1) whether the Court’s holding
on their deliberate indifference claim applies equally to Officer Artymovich and (2) whether
the City of Knoxville can be liable under Monell v. Department of Social Services, 436 U.S.
658, 694 (1978) if the Court concludes there is no underlying constitutional violation.
Defendants may file a response not later than October 31, 2013, with any reply due not
later than November 14, 2013.

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This 25th day of September, 2013.

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