# Nishiyama v. Dickson County > Court of Appeals for the Sixth Circuit · March 18, 1987 · 814 F.2d 277 URL: https://www.frixlaw.com/law-library/cases/8949229 ## Case - **Full name:** Ralph E. NISHIYAMA and wife, Gabrielene Nishiyama, as surviving parents and next-of-kin of Kathy Jane Nishiyama v. DICKSON COUNTY, TENNESSEE, a political subdivision of the State of Tennessee, Dowell (Doyle) Wall and Carroll Fiser - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** March 18, 1987 - **Citations:** 814 F.2d 277 - **Precedential status:** Published - **Opinion:** Dissent by Wellford - **Judges:** Boggs, Contie, Engel, Guy, Jones, Keith, Kennedy, Krupansky, Lively, Martin, Merritt, Nelson, Ryan, Wellford - **Cited by:** 109 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Graham v. Connor, 490 U.S. 386 (1989). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8949229 ## How later opinions describe it (automated extraction) - holding that a § 1983 complaint stated a claim by alleging that county officials allowed a convicted felon “trusty” to drive a patrol car and that the trusty had used the patrol car to direct a motorist to pull over to the side of the road, where the trusty murdered her - stating that a complaint will be dismissed on a Civil Rule 12(b)(6) motion only if plaintiff can prove no set of facts to support its claim for relief ## Opinion text WELLFORD, Circuit Judge, dissenting: I. Factual Background This is a tragic case involving a brutal murder of a young woman by an inmate of a county jail in Tennessee, who was permitted by a deputy sheriff at the time to drive alone an official county patrol vehicle. Plaintiffs, Ralph and Gabrielene Nishiyama, of Montgomery County, Tennessee, allege violations of 42 U.S.C. §§ 1983 and 1985(3), and assert a pendent state claim for wrongful death in the murder of their daughter by an inmate 1 of the Dickson County, Tennessee jail. In September, 1983, the trial court entered a memorandum and order granting defendants’ motion to dismiss. The Nishiyamas appeal only the dismissal of their § 1983 action for failure to state a claim upon which relief could be granted. In the context of a motion to dismiss for failure to state a claim on which relief could be granted, the court treats the facts alleged in the complaint as true. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826 , 105 S.Ct. 105 , 83 L.Ed.2d 50 (1984). On November 16, 1981, shortly after leaving a friend’s home around 8:30 p.m., Kathy Jane Nishiyama, in response to the signals of a Dickson County Sheriff’s Department patrol car, pulled to the side of the road. Charles Edward Hartman, a convicted felon, who was treated as a “Trusty” of the Dickson County Jail, driving alone the patrol car, approached Kathy Nishiyama and beat her to death, leaving her body in a remote area. Hartman was then serving the balance of his Tennessee state imposed sentence for burglary in the custody of the Dickson County Sheriff’s Department. The district court found that the Tennessee statute under which Hartman was apparently transferred from the state to the Dickson County Jail permits only nondangerous felons to be so assigned. The Nishiyamas allege that the defendants knew or should have known that Hartman was dangerous and allege further that he had assaulted a young woman in the past. Sheriff Wall placed Hartman on trusty status. It was alleged that defendants Wall and Fiser adopted a policy of allowing Hartman to have unsupervised use of Dickson County patrol cars to conduct official tasks for them, and to perform tasks for their personal benefit and for his own benefit. The Nishiyamas allege that this policy had been in effect before the time of the murder. The Nishiyamas, however, do not challenge the Tennessee trusty system in general, only the negligent failure of Wall and Fiser to undertake “reasonable standards” in connection therewith. 2 On the night of the murder, Deputy Fiser instructed Hartman to drive him to his farm. Upon arriving at his farm, Fiser turned sole possession of the fully equipped and *284 plainly marked patrol car over to Hartman. 3 After leaving Fiser’s farm, Hartman apparently proceeded to prowl the highways of Dickson, and adjacent Houston and Montgomery counties. He was allegedly absent for a number of hours. He accosted and stopped several motorists by flashing the patrol car’s blue lights. Montgomery County officials learned that a Dickson County Sheriff’s car was stopping motorists in their county under suspicious circumstances. At some unspecified time during the evening hours, they notified the Dickson County dispatcher in the sheriff’s office, who allegedly notified Wall and Fiser thereafter, but the time of notification is also not indicated in the complaint. Wall and Fiser allegedly did nothing after they were notified about this activity. Plaintiffs allege that Wall and Fiser’s policy of placing Hartman on trusty status and allowing him unsupervised use of an official patrol car amounted to “negligence of the grossest type,” which proximately brought about their daughter’s death. II. The District Court’s Decision The district court conceded that the decision to make Hartman a “trusty” and to give him unsupervised use of the patrol car was a decision made or conduct undertaken under “color of state law by a person or persons acting in an official capacity.” This finding, however, does not end the “color of state law” analysis. In order to state a claim under § 1983, the district court held, in effect, that the plaintiff must assert that the conduct under color of state law caused or directly brought about, as a foreseeable consequence, a deprivation of plaintiff's constitutional rights. Further, the district court held that the plaintiff must aver that the alleged deprivation of constitutional right occurred without due process of law. The district court reasoned that Hartman’s unauthorized action and assault resulting in a “random murder ... were not under color of law of the sheriff or his deputy. Hartman’s individual actions cannot be characterized as official actions.” In summary and conclusion, the district court stated that “the plaintiffs have failed to allege a constitutional deprivation of rights.” The district court concluded, furthermore, that although the alleged decision to grant Hartman “a limited liberty interest” in use of the patrol car was one made under color of state law, his actual terrible misuse of the car in furtherance of a criminal design did not constitute an action which could be attributed to any of the defendants; the court found “no allegation of fact indicating that any official approved or knowingly acquiesced in the conduct of Hartman,” and thus there was “no deprivation of a constitutional right.” In addition, the court concluded that “the alleged misuse of the ‘trusty system’ was not so egregious as to infer a deprivation of constitutional rights ... [there was] no alleged malice, but only negligence and possible recklessness.” The district court thus differentiated the negligent or reckless action of the county sheriff and his deputy from the willful and malicious action of the county officials in Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), a criminal civil rights violation prosecution. In addition to finding no deprivation of a constitutional right within the meaning of the civil rights statutes involved, the district judge found no violation of procedural due process within the meaning of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981). (The rationale of Parratt , concerning a property interest, was later held in Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc) to apply also to deprivation of liberty interest.) III. County Liability A. Respondeat Superior Dickson County is not liable to plaintiffs on the basis of respondeat superior for the actions of its agents or employees even if they involve violations of a constitutional right. City of Oklahoma City v. Tuttle, 471 U.S. 808 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 *285 (1985); Monell v. New York City Dept. of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). To put it another way, Dickson County may be held accountable for the actions of its agents or employees only if the deprivation was the result of municipal “custom” or “policy”. City of Oklahoma City, 471 U.S. at 818 , 105 S.Ct. at 2433; see also Monell, 463 U.S. at 694, 98 S.Ct. at 2037 . The county then, is liable only for its own independent actions in the form of policymaking, not merely as employer for the negligent or reckless acts of its employees or agents. For Dickson County to be liable, the policy of the county in this case must be alleged proximately to have subjected Kathy Nishiyama to a deprivation of her constitutional rights. Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.) (en banc), reh’g den., 735 F.2d 861 (5th Cir.1984), cert. denied, 472 U.S. 1016 , 105 S.Ct. 3476 , 87 L.Ed.2d 612 (1985). It is not enough that Deputy Sheriff Fiser, through gross negligence, permitted a prisoner trusty to use the county patrol car assigned to him, and that the trusty then committed a random act of murder against a citizen of another county. 4 Plaintiffs have not alleged any harm to other citizens by reason of alleged prior similar actions on the part of Wall and/or Fiser. Nor have plaintiffs alleged that the county had a policy of failing to investigate promptly official reports from another county about any unusual conduct of a person operating a Dickson County patrol vehicle. B. County Negligence or Knowledge Recognizing the authority cited above, the complaint does not allege that Dickson County is liable as employer of Wall or Fiser. Rather, it asserts that the county was “negligent” in that it had “actual knowledge or should have known of the pre-existing prior pattern of wrongful conduct of the sheriff ... in permitting the said Hartman to have free and unobstructed use of patrol cars on prior occasions.” The complaint does not say that the county court or that a county executive or official permitted the unsupervised use by a “trusty” of the patrol car; rather it says, in effect, that such responsible county authorities, who set county policy, knew or should have known that the sheriff and his deputy were allegedly permitting this activity through their negligence or “wrongful conduct.” If the county officials did not know about the alleged actions of Wall and Fiser in allowing a jail inmate the use of a patrol car, then, of course, the county was merely negligent in failing to discover a course of action by the sheriffs office that could lead to prisoner escape or other detrimental results or activity. Despite the allegation that Kathy Jane Nishiyama’s wrongful death was “reasonably foreseeable” as a consequence of this negligence, this negligence may not have been the proximate cause of harm and death to a citizen of another county. The Supreme Court noted very recently in Davidson v. Cannon, 474 U.S. 344 , 106 S.Ct. 668 , 88 L.Ed.2d 677 (1986), that “in Daniels we held that the Due Process Clause of the Fourteenth Amendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property.”—U.S. at-, 106 S.Ct. at 670 (emphasis added) (citing Daniels v. Williams, 474 U.S. 327 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986)). If the county officials knew about and did not act to stop the sheriff’s conduct in allowing Hartman’s use of the patrol car, then the degree of negligence in allowing this action to continue may be greater than mere ignorance or a failure to discover; *286 again, however, alleged knowledge by county officials of the sheriffs course of action in allowing the prisoner to be entrusted with a patrol car does not mean that the murder of the young victim was a foreseeable and intended or proximate consequence. Neither ignorance of the sheriffs alleged policy, nor knowledge of, nor acquiescence in, this alleged course of conduct by the sheriff and his deputy amount to any intentional or willful action by the county to harm plaintiffs or anyone else, or to deprive Nishiyama of her life. Daniels, 106 S.Ct. 662 , Davidson, 106 S.Ct. 668 . We have recently held that a § 1983 violation of substantive due process by reason of alleged reckless and/or negligent conduct of a law enforcement officer requires intentional action. Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc). Even if the negligent act involved here on the part of the county were an official act or sanction which “shocks the conscience,” so long as it was not intentional nor an official county policy intended to be directed against a specific individual, it is not actionable against the county. Wilson v. Beebe, 770 F.2d at 586 ; see also Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). Section 1983 does not impose liability for violations of duties that arise out of tort law. Baker v. McCollan, 443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979); Wilson, 770 F.2d at 582 . We would not in this instance conclude that the county’s action or failure to act was conduct that shocks the conscience. “[W]here a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required.” Davidson, 106 S.Ct. at 670 . (emphasis added). Hartman was not an agent of the defendant county, as the district court determined, and it is not his conduct that we examine. Nor is it enough, in our view, that plaintiffs have alleged that defendants' negligence (even if characterized as gross negligence) caused the “reasonably foreseeable” death of Kathy Nishiyama, if the consequence of the grossly negligent action was remote as a matter of law, intended by inference or otherwise. In Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), the Court assumed, as the complaint alleged, that defendant parole officials in a § 1983 action “knew, or should have known, that the release of Thomas [the murderer of plaintiff’s decedent] created a clear and present danger that such an incident would occur.” Id. at 280, 100 S.Ct. at 556 . The Court unanimously held, nevertheless, that the complaint stated no constitutional cause of action despite plaintiffs characterization of defendants’ actions as “reckless, willful, wanton and malicious” in releasing a convicted rapist and “Mentally Disoriented Sex Offender,” for whom the convicting court recommended no parole. Id. at 279, 280 , 100 S.Ct. at 556 . The Court concluded without dissent that regardless of whether defendants had committed a tort that “proximately caused [the victim’s] death,” the action by the parolee was not state action as a matter of law and defendants “did not ‘deprive’ appellants’ decedent of life within the meaning of the Fourteenth Amendment.” Id. at 285 , 100 S.Ct. at 559 . Martinez governs the issue of the county’s duty towards Nishiyama and the issue of whether Hartman’s action was state action. 5 We do not in so concluding the disposition of this issue minimize the characterization of gross or reckless conduct on the part of Wall and Fiser. We find no meaningful distinction in principle between the behavior of defendants here and the parole officials' action in Martinez , which was performed in the course of official duty and directed towards one then in a custodial relationship to defendants. Furthermore, in Martinez, 6 the Court did not portray as merely incidental the addi *287 tional consideration that the parole board was not aware that the parolee Thomas’ release created a special danger to the victim Martinez. Similarly, plaintiffs here do not allege that Hartman posed a particular danger to Kathy Nishiyama that was distinct from the dangers he posed to the general public. We conclude, moreover, that plaintiffs have not established a reasoned basis for treating as controlling and significant the brief period during which Hartman was at large in comparison to the several months period parolee Thomas was at large in Martinez . The remoteness discussed in Martinez was not simply a matter of time. Other factors were mentioned. For example, the Court observed that a parolee is in no sense an agent of the state in choosing to commit a crime____ Also, the court considered the fact that the plaintiffs’ decedent did not stand in any special relationship to the parolee from which the parole officers may have inferred a special danger to her. Humann v. Wilson, 696 F.2d 783, 784 (10th Cir.1983) (citations omitted). The actions of Wall and Fiser here burdened the public in general with a risk of harm while Hartman was released as a trusty for a number of hours; the actions of the Martinez defendants burdened the public at large immediately and for many months with a risk of harm in the release of a known dangerous offender from custody. While it may be true that persons in the vicinity, more likely motorists than others, were placed at greater risk, Kathy Nishiyama was one of many in Dickson County or surrounding counties who might have been a potential victim; she was not more particularly or personally placed at risk than were the individual victims in Martinez. See also Janan v. Trammell, 785 F.2d 557 (6th Cir.1986). The county, in all events, would not be liable by reason even of its alleged grossly negligent oversight with respect to Hartman’s acts. See Fox v. Custis, 712 F.2d 84 (4th Cir.1983) (parolee, negligently not taken into custody, within a few days murdered a young woman; held no cause of action under § 1983 against officials). 7 See also Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985) (even shorter time span between an inmate’s release from custody and rape of a nearby victim, yet a similar determination of no § 1983 liability). In sum, no “special relationship” existed between the state and the victim of a random murder committed by one who was, or should have been, held in restraint or custody by the state. The Nishiyamas cite case authority as support for the proposition that either “sufficiently egregious” official action, or omissions amounting to “deliberate indifference” by state officials will create a constitutional deprivation which satisfied § 1983. In each case cited, however, including one from this court, Fitzke v. Shappell, 468 F.2d 1072 (6th Cir.1972), the state had sin *288 gled out the victim from the general population and had created a special vulnerability distinct from that of the general public. See, e.g., Brandon v. Holt, 469 U.S. 464 , 105 S.Ct. 873 , 83 L.Ed.2d 878 . The victim was either a prisoner in state custody or being subjected to arrest by state officials. Officers of the state themselves, as in Brandon v. Holt and Fitzke , or a fellow prisoner violated the victim’s rights. The Nishiyamas have not demonstrated that the state or agents of the county similarly singled out their daughter or that these defendants had any special relationship with her. Therefore this claimed authority does not support plaintiffs’ assertion of a cause of action under § 1983. No basis exists for any finding under the assertions of the complaint that after Fiser “released” Hartman, even temporarily, that he could be considered in a different category from those offenders released in Martinez and therefore, somehow found to be within Wall and Fiser’s (or the county’s) continuing power to direct or control Hartman’s actions in his random and murderous activity after temporary release. That Hartman may have been released without supervision for a time, through gross negligent entrustment of a highway patrol vehicle, does not support plaintiffs’ argument that this rendered Hartman the agent of any defendant, especially in the commission of a random murder. Nor does Hartman’s return after committing the crime make him an agent of Wall and Fiser. C. No State Duty to Protect Member of Public Courts have consistently refused to recognize a duty on the part of the state, or a constitutional right of citizens to expect from the state, that it protect individual members of the public from random acts of violence. See, e.g., Beard v. O’Neal, 728 F.2d 894, 900 (7th Cir.) (holding that even when an FBI informant accompanied a murderer of plaintiff’s brother no constitutional cause of action was asserted against FBI supervisors because “no special relationship” between the parties gave rise to a constitutional duty to provide protection), cert. denied, 469 U.S. 825 , 105 S.Ct. 104 , 83 L.Ed.2d 48 (1984); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982) (holding: “[TJhere is no constitutional right to be protected by the state against being murdered by criminals or madmen.”). The Eleventh Circuit has noted: Regardless whether the cases speak in terms of lack of duty or lack of causation, the result is the same: generally, the due process clause of the Constitution does not protect a member of the public at large from the criminal acts of a third person, even if the state was remiss in allowing the third person to be in a position in which he might cause harm to a member of the public, at least in the absence of a special relationship between the victim and the criminal or between the victim and the state. Wright v. City of Ozark, 715 F.2d 1513, 1515 (11th Cir.1983). Finally, this court in Janan v. Trammell, 785 F.2d 557 (6th Cir.1986) has recently endorsed the interpretation herein attributed to the many cases from other circuits that have followed Martinez in circumstances analogous to those in the instant case. A substantially smaller amount of time lapsed in Janan between the Tennessee state officials’ alleged grossly negligent release on parole of a known violent offender, who continued to make threats against the lives of others, and his random murder of plaintiff’s decedent. The Janan court, nonetheless, considered Martinez , despite its longer time gap, to be controlling and affirmed a Rule 12(b)(6) judgment of dismissal of plaintiffs § 1983 claim: We decline to place such weight on the temporal factor. Rather, the proper analysis is whether a special relationship exists between the criminal and the victim or between the victim and the state or whether there is some showing that the victim, as distinguished from the public at large, faces a special danger by the parolee’s release. In so holding, we follow other circuits that have held that absent a special relationship between the criminal and the victim or the victim and the state, no due pro *289 cess violation can occur. Jones v. Phyfer, 761 F.2d 642 (11th Cir.1985); Fox v. Custis, 712 F.2d 84 (4th Cir.1983); Humann v. Wilson, 696 F.2d 783 (10th Cir.1983); Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982). As the Seventh Circuit stated in Bowers , “there is no constitutional right to be protected by the state against being murdered by criminals or madmen.” Bowers, 686 F.2d at 618 . 785 F.2d at 560 (emphasis added). There is no basis for this court to depart from Judge Martin’s considered rationale, so recently stated in Janan , that absent an allegation of a “special relationship ... between the criminal and the victim or between the victim and the state,” in this kind of situation, tragic as it is, no constitutional or § 1983 cause of action is stated. This is so particularly when it is clear and uncontroverted that the unfortunate victim was in the same status as the public at large (or the motorists using the highways generally) potentially subject to a random murder. Gross negligence was charged in Janan just as it was charged in this case, and, as a consequence, the plaintiffs alleged in Janan that a wrongful death occurred as plaintiffs have alleged here. In Janan , the plaintiffs alleged that defendant state officials knew that the risk of allowing the violence-prone parolee, who was making threats against the family of a police officer, was an obvious risk, and it could certainly be inferred that it was probable that serious injury or death might follow. Here, plaintiffs assert that the county and individual defendants knew or should have known of a similar risk. Although the acts of the defendants in the instant case might be classified as “more unreasonable” than those in Janan , the basic issues are the same; Martinez and its progeny, especially Janan , compel a conclusion that plaintiffs have failed to state a cause of action against the county. The county had no constitutional duty to protect Nishiyama and she had no constitutional “right” to be protected from an assault by Hartman. Holding the county liable under this claim would “ignore the fundamental requirement that there be a causal connection between the action or inaction on the part of the municipality and the constitutional wrongs visited on the plaintiff,” Landrigan v. City of Warwick, 628 F.2d 736 , 747 n. 7 (1st Cir.1980), even if plaintiffs had established a constitutional deprivation on the part of any defendant. In this respect, we would affirm the district court in its judgment for Dickson County. IV. Claims Against Wall and Fiser A. Wall Essentially for. the reasons stated in some detail in considering whether plaintiffs have stated a constitutional claim against Dickson County, we do not believe that a cause of action has been stated against Sheriff Wall. He also stands in the position of the employer of deputy Fiser and would not be liable under § 1983 on the basis of respondeat superior. He could be liable only for his own personal involvement, if any, in the alleged deprivation of Kathy Nishiyama’s constitutional rights. Wall is sued in his official capacity and thus stands in the same posture as the county. Brandon v. Holt, 469 U.S. at 472, 105 S.Ct. at 879 . Conceding, as alleged in the complaint, that Sheriff Wall knew and followed a course of conduct that permitted trusty Hartman unsupervised use of county patrol cars, the reasoning of Martinez and Janan (and the cases cited therein) preclude a determination of liability against him. No special relationship was alleged. Plaintiffs raised no allegation of any intended consequence of defendant Wall’s actions directed against Kathy Nishiyama in particular. She was not in any way subject to state control, nor in Wall’s custody at the time she was murdered. We would therefore affirm the judgment for Sheriff Wall despite giving plaintiffs the full benefit of the allegations of the complaint against him. *290 B. Fiser Unlike the other defendants, Fiser is charged with actually turning over the unsupervised use of the patrol car to Hartman knowing his background and propensity. We must, therefore, assume for purposes of this motion that he intentionally gave over the car to one in his personal custody while acting under color of state law. The intentional act of turning over a highway patrol car to an inmate trusty pursuant to an alleged grossly negligent policy of the sheriffs office does not indicate that any defendant, including Fiser, had any intention nor any malicious attitude towards Nishiyama, who in turn bore no special relationship to any defendant nor to Hartman the offender. Wilson v. Beebe concluded that conduct characterized as “reckless,” but which was not intentionally directed towards a victim in custody, was insufficient to establish a constitutional due process claim. 770 F.2d at 586 . Courts have historically required deliberate conduct to subject a state actor to a substantive due process claim under § 1983 for deprivation of life. Daniels v. Williams, 106 S.Ct. at 665. The reference in Daniels to Bochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), and to Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.) 272 (1856), refers to situations in which law enforcement personnel take direct and deliberate action against a specifically targeted individual resulting in loss of life, liberty, or property. That kind of action is not at issue, even with respect to defendant Fiser, with regard to the claims of a constitutional right to protection from random criminal conduct by one not acting under color of law. There is simply no authority recognizing that a claim of the kind asserted by plaintiffs here represents a cognizable constitutional cause of action, 8 or a § 1983 claim against Fiser despite the egregiously thoughtless character of his action. We would therefore affirm the action of the district court as to all defendants. . Inmate Hartman has since been found guilty of this murder and sentenced to death in Tennessee state courts. See State of Tennessee v. Hartman, 703 S.W.2d 106 (Tenn.1985), cert. denied, —U.S.-, 106 S.Ct. 3306 , 92 L.Ed.2d 721 (1986). . It is claimed, in particular, that Sheriff Wall and his deputy "failed to establish appropriate and reasonable standards and criteria for the determination and designation of a ‘trusty’ status ... they wrongfully permitted the said HARTMAN to be given a ‘trust status’____” . Plaintiffs alleged that Fiser "with the knowledge, consent and authority" of Wall, "acting in their official capacities," allowed Hartman to drive the car alone. . In Brandon v. Holt, 469 U.S. 464 , 105 S.Ct. 873 , 83 L.Ed.2d 878 (1985), the City of Memphis was held liable for its Police Director’s policies in retaining over a lengthy period, without adequate means of review, a police officer characterized as frequently abusive and a "mental case” who injured the persons he took into custody. Brandon, 469 U.S. at 466 n. 4, 105 S.Ct. at 875 n. 4. We perceive a distinction between the circumstances in Brandon and in the actions of the sheriff here and his deputy; the wrongful assailant in Brandon was the police officer himself, acting purportedly as a police officer at the time. Brandon reserved the question whether the injury was caused by the kind of "policy or custom” that "may be fairly said to represent official policy.” 469 U.S. at 473 n. 25, 105 S.Ct. at 879, n. 25. . The offender in Martinez was determined to be "in no sense an agent of the parole board." 444 U.S. at 285 , 100 S.Ct. at 559 . Neither can Hartman be deemed to be the agent of defendants here. . Martinez , citing Baker v. McCollan, 443 U.S. at 140 , 99 S.Ct. at 2692 , states: "It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individ *287 ual’s right to due process.” 444 U.S. at 284 n. 9, 100 S.Ct. at 559 n. 9. The Eleventh Circuit has also stated: The fact that defendants may have violated the duties set out by state law for employees of the Department of Youth Services [by releasing a known dangerous offender with an "extensive criminal and troubled psychiatric history” who shortly thereafter committed rape] does not mean that the defendants deprived plaintiff of her liberty rights without due process of law. Jones v. Phyfer, 761 F.2d 642, 647 (11th Cir. 1985). . The specific assertions by plaintiffs in Fox are remarkably similar to those made here: Here the particular constitutional infringement complained of is the deprivation of liberty and property rights secured by the fourteenth amendment. In more specific factual terms, the claimants have asserted the right not to be injured in person or property by the irresponsible failure of the state to protect-them against any risks of harm posed to them by a state parolee under the direct supervision of the state’s agents. In sum, the right asserted is the right to be protected by the state from the possible depredations of a convicted criminal with known dangerous propensities who is under the direct supervision of the state’s agents. 712 F.2d at 87-88 . Because the state agent defendants were "unaware that the [claimants] as distinguished from the public at large faced any special danger,” the court held that "claimants had no federal constitutional right to be protected by the state from the acts of Mason____” Id. at 88 . . Plaintiffs have asserted no claim of a Fourth Amendment violation on the part of any defendant. Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985) is thus not pertinent to the facts of this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8949229. Public record. Not legal advice.