The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0023n.06
No. 21-3620
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
DEBRA SMITH, Jan 11, 2022
)
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. )
)
GALLIA COUNTY, OHIO JAIL, et al., ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Defendants,
) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
SHERIFF MATT CHAMPLIN; CHIEF DEPUTY )
TROY JOHNSON; GALLIA COUNTY, OHIO )
COMMISSIONERS, )
)
Defendants-Appellants. )
Before: GIBBONS, ROGERS, and NALBANDIAN, Circuit Judges.
ROGERS, Circuit Judge. Debra Smith was working as a corrections officer at the Gallia
County Jail when several inmates injured her during an escape. At the time of her injuries, Smith
was on duty with another female corrections officer. Smith sued the jail and several local officials
under 42 U.S.C. § 1983, alleging that her substantive due process rights were violated by the jail’s
failure to follow its policy of having both male and female guards on duty when inmates are both
male and female. The district court held that Smith stated a substantive due process claim under
the state-created-danger exception. This was error, however, because Smith has failed to allege
facts demonstrating the presence of a special relationship or that the state created a special danger
by placing two female corrections officers on duty at the same time. In addition, because Smith
Case No. 21-5585, Smith v. Gallia Cnty., Ohio Jail, et al.
has not stated a claim that an underlying constitutional violation occurred, the county cannot be
liable under Monell v. Department of Social Services. See 436 U.S. 658 (1978). Finally, with
respect to Smith’s state-law claims, the defendants are entitled to statutory immunity.
Debra Smith began working as a correctional officer at Gallia County Jail in 2015. Matt
Champlin, the Sheriff of Gallia County, “was responsible for the training and supervision of all”
corrections officers and inmates in the jail. The Chief Deputy of Gallia County, Troy Johnson,
was also responsible for supervising jail operations. In 2017, the Gallia County Sherriff’s Office,
led by Champlin, established a policy that “[w]hen both males and females are housed in the jail
at least one male and one female staff member shall be on duty at all times.” Smith claimed that
the purpose of the policy was “to protect female corrections office[r]s against the potential threat
of violent male criminals” and to “protect the privacy of inmates” by ensuring that they could face
“same sex correction[s] officers in times of privacy.” In an alleged violation of the policy,
however, Smith was occasionally placed on duty with only another female corrections officer
while there were male inmates in the prison.
On or about September 29, 2019, Smith was on duty with only one other female corrections
officer despite the presence of male inmates. Smith and the other female corrections officer were
assaulted by four male inmates in connection with their escape from the jail. One of the inmates
held a knife to Smith’s neck, and Smith stated she “suffered serious physical and mental injuries”
as a result of the attack. Smith also asserted more generally that the defendants “have a history of
ignoring inhumane conditions at the jail and contributing to unhealthy and dangerous conditions
at the facility for inmates and staff.” For example, Smith alleged that the Ohio Bureau of Adult
Detention permitted the jail to house eleven inmates at a time, but on September 29 the jail
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contained about forty inmates. Smith also asserted that “numerous escapes and attempt[ed]
escapes” had occurred at the jail.
Smith sued the Gallia County Sheriff’s Office, Gallia County Jail, Sheriff Matt Champlin,
and Chief Deputy Troy Johnson under 42 U.S.C. § 1983, alleging that the defendants violated her
rights under the Eighth and Fourteenth Amendments. Smith also claimed that the county was
liable under Monell v. Department of Social Services for failing to train or establishing a policy
that was a moving force behind the constitutional violation. See 436 U.S. 658 (1978). Smith
further alleged that the defendants were negligent. The defendants filed a motion to dismiss for
failure to state a claim, and Smith filed an amended complaint. In the amended complaint, Smith
dismissed the Gallia County Jail and added the Gallia County Commissioners and individual
county commissioners as defendants. Smith specified that she was asserting both equal protection
and substantive due process claims under the Fourteenth Amendment, reiterated her Monell claim,
and alleged that defendants were liable for negligence and negligence per se in violation of Ohio
law. Smith added state-law claims for negligent training or supervision, premises liability, and
battery. The defendants filed a second motion to dismiss for failure to state a claim. In response,
Smith dismissed the Gallia County Sheriff’s Office and the individual county commissioners as
defendants, leaving only the Gallia County Commissioners, Sheriff Matt Champlin, and Chief
Deputy Troy Johnson. To the extent the defendants are sued in their official capacities, the suit is
effectively against the county. See Pineda v. Hamilton County, 977 F.3d 483, 494 (6th Cir. 2020).
Additionally, Champlin and Johnson are named in their individual capacities. In short, then, the
remaining defendants are Champlin and Johnson in their individual capacities, plus the county.
The district court granted the motion to dismiss in part and denied it in part. The court held
that Smith did not state an Eighth Amendment claim because she was not “incarcerated for a crime
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or involuntarily confined such that it can be said she is being ‘punished.’” Although Smith
“adequately pled purposeful or intentional gender-based discrimination,” she did not state an equal
protection claim under the Fourteenth Amendment because she did not “allege that she suffered
an adverse employment action.” However, the court held that Smith stated a Fourteenth
Amendment substantive due process claim under the state-created-danger exception. The court
also determined that Smith stated a Monell claim against Gallia County for a failure to train, or for
maintaining a policy or custom, that enabled the underlying substantive due process violation.
Turning to Smith’s state-law claims, the court held that Smith could not state a cause of action for
battery and also dismissed the negligence per se claim. The court declined to grant qualified
immunity to Champlin and Johnson on both the federal and state-law claims, concluding that the
immunity determination was premature at the motion to dismiss stage. Consequently, the only
remaining claims were the § 1983 substantive due process claims against Champlin and Johnson,
the Monell claim against Gallia County, and the state-law negligence claims against Gallia County,
Champlin, and Johnson. All three defendants appeal. Champlin and Johnson argue on appeal that
Smith did not state a claim for a substantive due process violation, and that even if she had,
Champlin and Johnson were entitled to qualified immunity. The county asserts that Smith did not
state a Monell claim, and the county, Champlin, and Johnson all argue that they are entitled to
statutory immunity on the state-law claims.
Smith does not state a substantive due process claim under either the state-created-danger
or special relationship exceptions, so the district court erred when it denied the defendants’ motion
to dismiss.1 To survive dismissal of her § 1983 claim, Smith must demonstrate that the defendants
1
Because Smith does not sufficiently allege that a constitutional violation occurred, it is not necessary to address
separately the issue of whether there was a violation of a clearly established constitutional right.
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violated her rights under the Constitution, here the Fourteenth Amendment. See Sexton v. Cernuto,
18 F.4th 177, 184 (6th Cir. 2021). But Smith’s claim turns on the defendants’ failure to protect
her from inmate violence, and the Fourteenth Amendment “generally confer[s] no affirmative
right” to government protection from private violence. See id. at 186 (quoting DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)). Consequently, Smith must
demonstrate that one of two limited exceptions applies, either a state-created-danger or a special
relationship. See Est. of Romain v. City of Grosse Pointe Farms, 935 F.3d 485, 491-492 (6th Cir.
2019); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir. 2012). Both exceptions
rely on the government’s having undertaken “‘to assume some responsibility for [the] safety and
wellbeing’ of an individual.” See Sexton, 18 F.4th at 186 (quoting DeShaney, 489 U.S. at 200).
The state-created-danger exception does not apply because Smith has not sufficiently
alleged any of the three independent requirements to state such a claim. See M.J. ex rel. S.J. v.
Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 448 (6th Cir. 2021). Smith must demonstrate “an
affirmative act by the state which either created or increased the risk that [she] would be exposed
to an act of violence by a third party.” Id. at 449 (quoting Cartwright v. City of Marine City, 336
F.3d 487, 493 (6th Cir. 2003)). Smith is next required to demonstrate “a special danger to [her]
wherein the state's actions placed [her] specifically at risk, as distinguished from a risk that affects
the public at large.” Id. (quoting Cartwright, 336 F.3d at 493). The final requirement is “that the
state was aware of the ‘substantial risk of serious harm’ and responded in a way that was
‘conscience shocking.’” Id. (quoting Jane Doe v. Jackson Local Sch. Bd. of Educ., 954 F.3d 925,
934 (6th Cir. 2020)).
First, there is arguably no affirmative act alleged in this case. Smith argues that the
defendants acted affirmatively when they enacted the gender policy and then chose not to follow
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Case No. 21-5585, Smith v. Gallia Cnty., Ohio Jail, et al.
it. It is true that the affirmative act inquiry focuses on “whether [the victim] was safer before the
state action than he was after it,” and Smith alleged that the failure to follow the policy increased
her risk of violence from male inmates. See Wilson v. Gregory, 3 F.4th 844, 859 (6th Cir. 2021)
(quotation omitted). But the defendants have a strong argument in response, because “failure to
act is not an affirmative act under the state-created danger theory.” See id. (quoting Cartwright,
336 F.3d at 493). Furthermore, defendants argue that the risk Smith faced stemmed from her
employment as a corrections officer, and “[e]ven affirmatively returning a victim to a preexisting
situation of danger does not create or increase the victim’s risk of harm” as required to show an
affirmative act. See Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 855 (6th Cir. 2016).
Even if we assume for purposes of argument that the affirmative action requirement has
been met, however, Smith has not alleged a special danger placing her specifically at risk, apart
from the requirements of her employment. In cases where we have held that the special danger
requirement was met, the government knew the identity of a specific victim who was at risk of
harm. See, e.g., Caldwell v. City of Louisville, 120 F. App’x 566, 573 (6th Cir. 2004); Kallstrom
v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998). “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.” Jones v. Reynolds, 438 F.3d
685, 696 (6th Cir. 2006). On the other hand, we have held that the special danger requirement was
not met in cases in which the government was unaware of a specific or targeted risk to a particular
individual. See, e.g., Jones, 438 F.3d at 697; Schroder v. City of Fort Thomas, 412 F.3d 724, 729
(6th Cir. 2005). This case falls into the latter category because there is no evidence that the
defendants knew of any threat to Smith as a specific individual.
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The district court’s reliance on our unpublished opinion in Waller v. Trippett is thus
misplaced. See 49 F. App’x 45 (6th Cir. 2002). In Waller, the defendant (a prison official) knew
that a particular inmate had committed violent knife crimes against women, yet still permitted that
inmate to work on kitchen duty with access to knives. See id. at 47. The officials ignored a female
kitchen employee’s request that the inmate not be near her, and the inmate proceeded to use a knife
to stab and kill the kitchen employee. See id. We held that there was a special danger to the victim
because she “was a member of a limited and specifically definable group,” and the defendant’s
conduct put the “members of that group at substantial risk of serious, immediate and proximate
harm.” See id. at 50-51. In contrast to the risk to the specifically identifiable victim in Waller,
however, in this case there was no evidence of a specific risk to Smith in particular. Smith does
not plead any facts indicating that the defendants were aware that having two female corrections
officers on duty without a male colleague posed a special danger to the female corrections officers.
It is true that Smith alleged that there had been previous escapes from the jail and that the jail was
significantly overcrowded at the time she was attacked. But Smith does not state any facts
demonstrating that jail officials knew that those conditions caused a specific risk to female
corrections officers if they were on duty without a male colleague.
Finally, even if generously assuming affirmative action and a specific risk, it is beyond
debate that the risk in this case does not shock the conscience. The fact that Smith was placed on
duty with a fellow female corrections officer cannot in any way be described as “conscience
shocking.” The state-created-danger exception “imposes a demanding standard,” one that is met
at a minimum by “a showing of at least deliberate indifference.” See M.J. ex rel. S.J., 1 F.4th at
448-49. The demanding standard is not met by the defendants’ apparent belief that Smith and her
fellow female corrections officer did not need a male colleague on duty with them in order to
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perform their job. We recently held in Jane Doe that the state-created-danger exception did not
apply when school officials placed a misbehaving student next to a kindergartner on a bus and the
misbehaving student then sexually assaulted the kindergartner. Jane Doe, 954 F.3d at 935-36. We
noted that the “conscience shocking” standard is not met by choices that represent “the
practicalities of day-to-day governance [that] require officials to make difficult allocation choices
and tradeoffs.” Id. at 936 (quotation omitted). If government choices that led to the sexual assault
of a kindergartner did not qualify as “conscience shocking,” then Champlin and Johnson’s belief
that two female corrections officers could sufficiently perform their jobs without a male colleague
present certainly does not fall into that category.
Smith’s alternative argument—that the special relationship exception applies—also fails.
The special relationship exception is inapplicable because Smith was a government employee at
the time of the incident, not a prisoner or other individual under state control. The special
relationship exception applies when the state places a “significant restraint on [an] individual’s
personal liberty,” which “typically requires ‘some state action that applies force (or the threat of
force) and show of authority made with the intent of acquiring physical control.’” See Sexton,
18 F.4th at 186 (quoting Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005)). The voluntary
employer-employee relationship does not cause a “restraint” on the employee. This conclusion is
supported by Collins v. City of Harker Heights, in which the Supreme Court held that substantive
due process did not require the government “to provide its employees with a safe working
environment.” 503 U.S. 115, 126 (1992). The Court emphasized that it had “previously rejected
claims that the Due Process Clause should be interpreted to impose federal duties that are
analogous to those traditionally imposed by state tort law.” Id. at 128.
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Case No. 21-5585, Smith v. Gallia Cnty., Ohio Jail, et al.
In sum, Smith’s substantive due process claim does not fit within traditional substantive
due process principles or either of the two narrow exceptions recognized by the Supreme Court in
DeShaney. See 489 U.S. at 200. Indeed, extending the exceptions as Smith argues would swallow
the rule, expanding substantive due process into an engine constitutionalizing every claim of
physical harm resulting from government failure to follow one of its own safety policies.
In the absence of a sufficient allegation of a constitutional violation on the part of Champlin
and Johnson, Smith’s Monell claim against Gallia County founders as well. Generally speaking,
and certainly in this case, liability under Monell fails without an underlying constitutional violation
on the part of an employee. See Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014); see also
Sensabaugh v. Halliburton, 937 F.3d 621, 630 (6th Cir. 2019).
Finally, Gallia County, Champlin, and Johnson are all entitled to statutory immunity on
Smith’s state-law claims. Smith claims that Gallia County is liable under Ohio law governing
municipal liability, and that Champlin and Johnson can also be held liable for negligence in their
individual capacities. First, Gallia County is entitled to statutory immunity because the relevant
conduct involved the exercise of its governmental responsibilities. Under Ohio law, Gallia County
is a “political subdivision [that] is not liable in damages in a civil action for injury, death, or loss
to person or property allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental or proprietary function.”
Ohio Rev. Code Ann. § 2744.02(A)(1). Overseeing Sheriff Champlin, the jail, and policies
enacted to operate the jail are quintessential government functions, and the statute specifically
provides that a “governmental function” includes the “operation of jails.” Id.; see Porter v. Probst,
18 N.E.3d 824, 832 (Ohio Ct. App. 2014). The only possibly relevant exception to statutory
immunity, which provides that “political subdivisions are liable for injury, death, or loss to person
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or property caused by the negligent performance of acts by their employees with respect to
proprietary functions of the political subdivisions,” does not apply. Ohio Rev. Code Ann. §
2744.02(B)(2). Running the county jail is a government function, not a proprietary function, which
involves “activities that are customarily engaged in by nongovernmental persons,” such as
operating a utility company. See Ohio Rev Code Ann. §§ 2744.01(C)(1), (G)(1)(b).
Second, Champlin and Johnson in their individual capacities are also entitled to statutory
immunity on Smith’s state-law claims because Smith has not pled any facts demonstrating that
Champlin and Johnson acted in a way that would deprive them of statutory immunity under Ohio
law. See Ohio Rev. Code Ann. § 2744.03(A)(6). As state employees, Champlin and Johnson are
entitled to statutory immunity unless they acted “manifestly outside the scope of [their]
employment” or acted “with malicious purpose, in bad faith, or in a wanton or reckless manner.”
Ohio Rev. Code Ann. § 2744.03(A)(6). Smith does not dispute that Champlin and Johnson acted
within the scope of their employment. Consequently, Champlin and Johnson are “immune from
liability” unless they acted “with malicious purpose, in bad faith, or in a wanton or reckless
manner.” Ohio Rev. Code Ann. § 2744.03(A)(6).
Smith has not alleged any facts indicating that Champlin or Johnson acted “with malicious
purpose” or “in bad faith” by permitting two female corrections officers to work without a male
corrections officer on duty. Smith has also not pled any facts demonstrating that Champlin and
Johnson acted in a “wanton or reckless manner,” which the Ohio Supreme Court described as
“rigorous standards that will in most circumstances be difficult to establish” in the law enforcement
context. See Argabrite v. Neer, 75 N.E.3d 161, 164 (Ohio 2016). First, “wanton misconduct” is
“the failure to exercise any care toward those to whom a duty of care is owed in circumstances in
which there is great probability that harm will result.” Id. (quoting Anderson v. Massillon, 983
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N.E.2d 266, 273 (Ohio 2012)) (emphasis in original). As discussed above, Smith has not alleged
that Champlin and Johnson believed that there was a “great probability” of harm that would arise
from placing two female corrections officers on duty without a male colleague. Second, “reckless
conduct” is “characterized by the conscious disregard of or indifference to a known or obvious
risk of harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct.” Id. (quoting Anderson, 983 N.E.2d at 267). Again, Smith has not asserted
that permitting two female corrections officers to work without a male colleague involved a
“known or obvious risk of harm.” Smith did not allege that it should have been “obvious” to
Champlin and Johnson that female corrections officers could not safely perform their job without
the assistance of male colleagues.
Accordingly, we reverse the judgment of the district court.
11