Clifton Smith v. City of Detroit, Mich.

NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0195n.06

No. 23-1448

FILED

UNITED STATES COURT OF APPEALS May 02, 2024

FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk

)

CLIFTON SMITH,

)

Plaintiff-Appellant, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

CITY OF DETROIT, MICHIGAN, et al., )

Defendants-Appellees. ) OPINION

)

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Clifton Smith appeals the district court’s dismissal of his

complaint filed against the City of Detroit and two unnamed Detroit police officers. Smith brought

a claim under 42 U.S.C. § 1983, alleging that Defendants violated his substantive due process

rights when Detroit police officers facilitated the release of a felon from custody or court

supervision who went on to shoot Smith 23 times. Because the district court correctly found that

Smith’s complaint failed to state a constitutional violation, we AFFIRM the district court’s

judgment.

I. BACKROUND

A. Factual Background

The following facts are taken from Smith’s complaint. On October 29, 2019, two unnamed

Detroit police officers—listed in the complaint as “John Doe 1” and “John Doe 2” (“John Does”)—

engaged convicted felon Kenyel Brown as a confidential informant. Compl., R. 1, Page ID #2–3,

5. The complaint alleges that, at this time, Brown was either incarcerated or under court

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supervision overseen by the United States District Court for the Eastern District of Michigan.

Despite knowing or having reason to know of Brown’s extensive criminal history, history of

noncompliance with court orders, propensity for violence, and psychological instability, the John

Does facilitated his release from either custody or supervision in October 2019 so that Brown could

serve as a confidential informant.

After Brown was released, he committed multiple murders. On December 7, 2019, he

murdered Laura Hattington in River Rouge, Michigan. Later, on January 29, 2020, Brown

murdered two people while at a home in River Rouge with Smith, Smith’s girlfriend, and another

individual. Brown twice asked to borrow money from Smith, but Smith declined each time. After

the second time Smith declined to lend Brown money, Brown pulled out a gun and shot Smith’s

girlfriend twice. He then shot Smith 23 times, before turning the gun on Smith’s girlfriend again

and shooting her in the head. Brown then murdered another person in the house and left. Although

Smith survived the shooting, it required him to undergo surgery and left him with permanent

injuries.

B. Procedural History

On January 28, 2023, Smith filed a complaint against the City of Detroit and the John Does.

He brought a claim under 42 U.S.C. § 1983, alleging that the John Does violated his substantive

due process rights under the Fourteenth Amendment when they created a danger to Smith by

releasing Brown from custody or supervision. He also brought a municipal liability claim against

the City of Detroit under § 1983, arguing that the City had a policy or custom of “using confidential

informants improperly and/or without regard to the safety of its community.” Compl., R. 1, Page

ID #9. Finally, he brought a state law claim against the John Does, alleging that they were grossly

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negligent in facilitating Brown’s release from custody or supervision and failing to properly

supervise Brown upon his release.

Smith served only the City of Detroit in the district court. The City filed a motion to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that, because Smith

had failed to state an underlying substantive due process violation, the City could not be held liable

under a municipal liability theory. Specifically, the City argued that Smith failed to allege facts

sufficient to meet the state-created danger exception to the general principle that acts by private

individuals, such as Brown, do not violate the Due Process Clause.

The district court agreed with the City and found that Smith had not stated a substantive

due process violation under the state-created danger theory. It acknowledged that this Court’s

precedent requires a plaintiff to show “a special danger to the plaintiff wherein the state’s actions

placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large”

in order to succeed on a state-created danger theory of substantive due process. Lipman v. Budish,

974 F.3d 726, 744 (6th Cir. 2020) (quoting Cartwright v. City of Marine City, 336 F.3d 487,

493 (6th Cir. 2003)). Finding that the complaint alleged that Brown posed a “particular” danger

to Smith in only a conclusory manner, the district court concluded that the complaint did not

plausibly state that the John Does’ actions placed Smith specifically at risk of harm from Brown.

Compl., R. 1, Page ID #3. The district court thus dismissed Smith’s § 1983 claims against the

John Does and, because no underlying constitutional violation had been sufficiently pleaded,

dismissed the municipal liability claim against the City as well. Relying on its discretionary

authority to dismiss supplemental state law claims after dismissing all federal law claims, the

district court dismissed Smith’s state law gross negligence claim without prejudice. See 28 U.S.C.

§ 1367(c)(3); see also Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254–55 (6th Cir.

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1996). Smith timely appealed the dismissal of his complaint. On appeal, he challenges only the

dismissal of his federal law claims.

II. DISCUSSION

This Court reviews a district court’s denial of a motion to dismiss de novo. Marvaso

v. Sanchez, 971 F.3d 599, 605 (6th Cir. 2020). “In reviewing the motion to dismiss, we construe

the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations

in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.” Courtright

v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Conclusory allegations—those that

“amount to nothing more than a ‘formulaic recitation of the elements’ of a . . . claim”—are not

entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A. Constitutional Violation

The Due Process Clause of the Fourteenth Amendment prohibits any state from

“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Substantive due process, as opposed to procedural due process, “is the doctrine

that governmental deprivations of life, liberty or property are subject to limitations regardless of

the adequacy of the procedures employed.” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014)

(cleaned up). It protects those interests enumerated in the Constitution, certain interests “so rooted

in the traditions and conscience of our people as to be fundamental,” and “freedom from

government actions that ‘shock the conscience.’” Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th

Cir. 2003) (citation omitted).

Smith’s complaint alleges that the John Does deprived him of a protected interest when

they facilitated Brown’s release from custody or supervision and failed to properly supervise him

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upon release, leading to Brown shooting Smith. Generally, the Due Process Clause does not render

a state liable for the actions of private individuals. See DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 195 (1989) (“The [Due Process] Clause is phrased as a limitation on the

State’s power to act, not as a guarantee of certain minimal levels of safety and security.”).

However, based on the Supreme Court’s decision in DeShaney, this Court has recognized two

situations in which a state may be held liable under the Due Process Clause for acts taken by private

individuals, one of which is relevant to this case. Lipman, 974 F.3d at 741–42. Specifically, the

“state-created danger doctrine” holds state actors liable for harm caused by private individuals if

the state actors “create or increase the danger of private harm.” Id. Smith brings his due process

challenge under this theory of liability.

At the motion to dismiss stage, a plaintiff must allege the following three elements to show

a violation of substantive due process under the state-created danger theory: (1) “an affirmative

act that creates or increases the risk,” (2) “a special danger to the victim as distinguished from the

public at large,” and (3) “the requisite degree of state culpability.”1 McQueen v. Beecher Cmty.

Schs., 433 F.3d 460, 464 (6th Cir. 2006). On appeal, the City argues that Smith has failed to meet

the first two prongs of this test. First, the City briefly argues that the complaint fails to allege that

any affirmative acts taken by the John Does led to Brown shooting Smith. Smith contends that he

1

The third prong has been described by some of this Court’s cases as the requirement that

“[t]he state must have known or clearly should have known that its actions specifically endangered

an individual.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 469 (6th Cir. 2006) (alteration in

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

have since clarified that this knowledge requirement is synonymous with the level of culpability

required to establish a substantive due process violation. See id.; see also Jane Doe v. Jackson

Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 932 (6th Cir. 2020). Thus, plaintiffs who attempt to

state a violation of substantive due process under the state-created danger theory must show that

the state actors’ conduct was “so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).

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has alleged an affirmative act by stating that the John Does facilitated Brown’s release from

custody or supervision. We need not resolve this dispute. Even assuming that Smith adequately

pleaded affirmative acts taken by the John Does, he has failed to meet the second prong of the

state-created danger theory. That is, he has failed to allege that Brown posed any special danger

to Smith as opposed to the public at large. Smith’s failure to meet the second prong of the test is

dispositive in this case.

To sufficiently allege a substantive due process violation under a state-created danger

theory, plaintiffs must allege that “the state’s actions place the victim specifically at risk, as

distinguished from a risk that affects the public at large.” Kallstrom v. City of Columbus, 136 F.3d

1055, 1066 (6th Cir. 1998). A plaintiff may also allege that he was a member of a “small class”

of individuals placed at risk. Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534

(6th Cir. 2008). Defendants correctly argue that Smith has alleged that Brown’s release posed a

risk to only the general public, as opposed to Smith specifically.

In an analogous case, the Supreme Court held that a parole board’s release of an individual

who committed murder while on parole did not violate the Due Process Clause because “the parole

board was not aware that [the] decedent, as distinguished from the public at large, faced any special

danger.” Martinez v. California, 444 U.S. 277, 285 (1980). This Court similarly found no

substantive due process violation by state parole board members when a parolee killed someone

because the decedent was “simply a member of the public at large.” Janan v. Trammell, 785 F.2d

557, 560 (6th Cir. 1986). Both Martinez and Janan were decided without reference to what this

Court now labels the state-created danger doctrine. Nevertheless, they both stand for the

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proposition that plaintiffs must allege that the release of an individual from custody posed a risk

of harm to a specific individual in order to state a substantive due process claim.2

Moreover, in the context of the three-part test developed for the state-created danger theory

in this Circuit, we have repeatedly found no due process violation when plaintiffs identify a risk

to only the general public by a given state action. For example, officers who failed to stop a drag

race on a city street that resulted in the death of a spectator did not create a special danger to

the spectator because “the crowd contained at least 150 people at the time of the race.” See Jones

v. Reynolds, 438 F.3d 685, 697 (6th Cir. 2006). Similarly, a city’s decision to create a

25 mile-per-hour speed limit on a street and the city’s failure to enforce this speed limit did not

create a special danger to a young boy who was killed by a driver traveling at 40 miles-per-hour

down the road. Schroder v. City of Fort Thomas, 412 F.3d 724, 726, 729 (6th Cir. 2005). We held

that the speed limit law did not create a special danger to the young boy that could be distinguished

from the “general traffic risk to pedestrians and other automobiles.” Id. at 729. Further, officers

who spoke with an intoxicated woman and encouraged her to go home in her car did not create a

special danger to the motorist she later killed because the drunk driver posed no more risk of harm

to the motorist than to the general public. Koulta v. Merciez, 477 F.3d 442, 444, 447 (6th Cir.

2007). We also declined to recognize individuals driving in the area at the time of the crash as a

sufficiently discrete class of individuals put at risk. Id.; see also Jones v. City of Carlisle, 3 F.3d

2

Smith attempts to distinguish Martinez from the instant case by claiming that Brown acted

as an agent of the state when he shot Smith because he was a confidential informant. He highlights

that the Supreme Court in Martinez noted that the parolee who committed murder “was in no sense

an agent of the parole board,” and declined to impose liability on the parole board partly for this

reason. 444 U.S. at 285. But Smith cites no authority for the proposition that a confidential

informant acts as an agent of the state at all times. It particularly strains belief that Brown would

have been acting as an agent of the state when he committed multiple murders and shot Smith 23

times.

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945, 947–50 (6th Cir. 1993) (finding no special danger to driver injured by another driver having

an epileptic seizure because the city’s decision to permit the epileptic driver to maintain a driver’s

license did not pose a special risk to the injured driver as compared to the public).

Smith argues that he has sufficiently alleged that the John Does’ actions placed him

specifically at risk by pointing to one line in his complaint which reads: “At all times relevant to

this lawsuit, John Doe 1, John Doe 2, and/or the City knew or had reason to know that Brown

represented a danger to the public, as well as to Plaintiff in particular.” Compl., R. 1, Page ID #3

(emphasis added). As the district court correctly found, this statement is too conclusory to

sufficiently allege that releasing Brown put Smith particularly at risk. Rather than pleading any

specific facts that would have put Smith, as opposed to the general public, at risk of harm from

Brown, the complaint instead formulaically recites the second prong of the state-created danger

theory. See Iqbal, 556 U.S. at 681. Moreover, the remainder of Smith’s complaint does not contain

any more specific allegations of the risk of harm to Smith in particular, as distinguished from the

general public.

Smith further argues that Brown posed a danger to a small class of individuals of which

Smith was a member, namely individuals living in Detroit and the downriver communities, and

particularly those individuals known by Brown before his release. But the entire metropolitan area

of the city of Detroit, even if narrowed to just the downriver communities, is not a “small class”

of people, Hunt, 542 F.3d at 534; it is the general public. Cf. Jones, 438 F.3d at 697 (finding a

crowd of 150 spectators more similar to the general public). Even narrowing this group to the

individuals in these communities known by Brown before his release does not create a sufficiently

small class of identifiable people because Smith provides no context for how large or small this

group may be. See Koulta, 477 F.3d at 447 (declining to recognize a group of individuals driving

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on discrete roads in a narrow time period as a small class of people because the Court had “no idea

how many people would be in that group”).

More importantly, Smith’s complaint does not allege that Brown posed a specific risk to

these allegedly small classes of people. Instead, Smith raised this argument only in his opposition

to the City’s motion to dismiss. Thus, even if specific pockets of Detroit or individuals known by

Brown before his release could legally constitute small classes of individuals at risk of violence

from Brown, Smith’s failure to allege this risk in his complaint means that he may not rely on this

theory. See Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020)

(acknowledging that plaintiffs may not amend their complaints through briefing).

Finally, Smith’s complaint also fails to state a substantive due process violation because

he has failed to sufficiently allege that the John Does were aware of a specific risk to Smith or a

class of people to which Smith belonged. See Jane Doe v. Jackson Loc. Sch. Dist. Bd. of Educ.,

954 F.3d 925, 933–35 (6th Cir. 2020) (finding no substantive due process violation in part because

state actors were not “aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists” (citation omitted)); Jones, 438 F.3d at 697 (finding no substantive due

process violation in part because officers had no “reason to know” that any actions they took put

the plaintiff at risk).3 Other than his conclusory statement that the John Does knew that Brown

posed a risk to Smith “in particular,” Smith does not allege any other facts that would put the John

Does on notice that Brown posed a risk to Smith. Compl., R. 1, Page ID #3. Because Smith failed

3

We have occasionally referenced this knowledge requirement in the context of the

second prong of the state-created danger test. See, e.g., Jones, 438 F.3d at 697; Culp v. Rutledge,

343 F. App’x 128, 136 (6th Cir. 2009). More commonly, we have discussed the knowledge of the

state actors as a part of the culpability analysis of the third prong of the test. See, e.g., Jackson

Loc. Sch. Dist. Bd. of Educ., 954 F.3d at 933–35; Lipman, 974 F.3d at 744 & n.7; McQueen, 433

F.3d at 469.

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to allege that Brown posed a specific risk of harm to Smith, as opposed to the general public, and

because he failed to allege that the John Does knew of any risk to Smith if the risk did exist, he

has failed to state a due process violation.

B. Municipal Liability

Smith also sued the City for its allegedly faulty policies and practices relating to

confidential informants, seeking to hold the City liable under Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 694 (1978). However, to hold a municipality liable

under Monell, the plaintiff must sufficiently plead an underlying constitutional violation.

See Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004) (“A municipality or

county cannot be liable under § 1983 absent an underlying constitutional violation by its

officers.”). Because Smith has not plausibly stated an underlying constitutional violation, the

claim against the City must be dismissed as well.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s dismissal of Smith’s

complaint.

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