PROFFITT, JAMES v. RIDGWAY, DEAN R.
In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3229
James Proffitt, Special Administrator of
the Estate of William R. Woodall,
Plaintiff-Appellant,
v.
Dean R. Ridgway, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 3182--Jeanne E. Scott, Judge.
Argued September 5, 2001--Decided February 2, 2002
Before Flaum, Chief Judge, and Posner and
Ripple, Circuit Judges.
Posner, Circuit Judge. This suit under
42 U.S.C. sec. 1983 charges excessive
force, resulting in death, in the efforts
by defendant Ridgway, a police officer in
the City of Pana, Illinois, and defendant
Lykins, a private citizen who assisted
the officer, to subdue Woodall, the
plaintiff's decedent. The suit also
charges deliberate indifference by
Ridgway to Woodall's safety in failing to
confine him securely to prevent the
eruption that resulted in the struggle
and his death, and finally charges the
City of Pana with having failed to train
Ridgway adequately. All these are charges
of deprivation of life without due
process of law, in violation of the
Fourteenth Amendment; such charges are of
course actionable under section 1983. The
district court granted summary judgment
for the defendants.
The facts are not seriously disputed.
Woodall was arrested after hitting his
wife, was observed to be very drunk, and
when told he was being taken to jail said
that he wasn't going to jail--either he
or the officer taking him would be dead
first. The officer was Ridgway, who
handcuffed Woodall's hands behind his
back and placed him in the back seat of
the police car. But despite Woodall's
threat he neglected to shackle Woodall's
legs, fasten Woodall's seatbelt, or close
the plexiglas partition between the
driver's seat and the back seat. During
the drive to the jail, Woodall managed to
bring his cuffed hands to the front of
his body by putting his feet through his
arms, and having done so he grabbed the
steering wheel and veered the car into a
ditch. Just then, Lykins chanced on the
scene. While Ridgway was struggling out
of the car, Lykins asked him whether he
needed help. Ridgway replied that he did.
Woodall then forced open the car door and
tumbled out and Ridgway tried to spray
him with pepper spray but accidentally
sprayed himself instead, temporarily
blinding himself. He told Lykins, "Let's
take him to the ground," and the two men
eventually were able to wrestle Woodall
to the ground, though not before Woodall
pulled Lykins's shirt over his head and
attacked him with a tree branch. A much
lighter man than Woodall (about 155
versus 200 pounds), Lykins began to tire
and asked Ridgway whether Woodall could
be knocked out and said he'd have to
"choke out" Woodall. While Ridgway was
busy trying to hold down the lower part
of Woodall's body (Woodall was kicking
furiously), Lykins pushed his forearm
against the side of Woodall's neck.
Ridgway heard a gurgling sound and told
Lykins to loosen his hold. The sequence
was repeated several times. Then other
policemen arrived, and observed Woodall
still kicking violently. But within a few
minutes Woodall was dead from the effect
of Lykins's pressure on his neck,
possibly combined with fatigue and
inebriation, but that is unclear.
We may assume without having to decide
that Ridgway was negligent in failing to
confine Woodall more securely to the back
seat of the police car. Ridgway testified
that he left the plexiglas partition open
because it would make it easier for him
to talk to Woodall, and he thought that
talk would have a calming effect.
Moreover, it's quite a trick to get your
hands, when they are handcuffed behind
you, in front of you where they can do
harm. But assuming despite these points
that Ridgway was negligent--that in other
words a reasonable person in his position
would have thought additional precautions
against Woodall's breaking out cost-
justified--Ridgway was not deliberately
indifferent to Woodall's safety. And that
is the applicable standard in a section
1983 suit charging excessive force
against a pretrial detainee, as against
other prisoners. Mayoral v. Sheahan, 245
F.3d 934, 938 (7th Cir. 2001); Gibbs v.
Grimmette, 254 F.3d 545, 547, 548-49 (5th
Cir. 2001).
Deliberate indifference implies that the
defendant knew there was a substantial
risk of serious harm to the plaintiff,
Farmer v. Brennan, 511 U.S. 825, 837, 842
(1994); Weiss v. Cooley, 230 F.3d 1027,
1032 (7th Cir. 2000), though if the risk
was obviously very great the jury must be
permitted, though it is not required, to
draw an inference that, despite the
defendant's denials and the absence of
direct evidence of his state of mind, he
knew of the risk. Farmer v. Brennan,
supra, 511 U.S. at 841-43 and n. 8; Haley
v. Gross, 86 F.3d 630, 641 (7th Cir.
1996); Curry v. Scott, 249 F.3d 493, 506-
07 (6th Cir. 2001).
Although there is no constitutional
right to be shackled, once Woodall was in
police custody the police had a duty to
provide for his safety, Wang v. Reno, 81
F.3d 808, 818 (9th Cir. 1996) (per
curiam); Stemler v. City of Florence, 126
F.3d 856, 867-68 (6th Cir. 1997), even
though, since he himself was the prime
danger to that safety, the usual
rationale for the duty--that the state by
taking a person into custody has limited
his ability to look after his own safety-
-hardly applies. But in that respect the
case is similar to cases that make clear
that jailers must make efforts to prevent
obviously suicidal prisoners from
committing suicide. E.g., Jutzi-Johnson
v. United States, 263 F.3d 753, 756 (7th
Cir. 2001). A better rationale is that in
both the suicide case and our kind of
case, police conduct has increased the
danger to the person whom they have taken
into custody, making the police a cause
in an uncontroversial sense of the injury
for which the suit seeks redress.
The duty, however, as we have said, is
just to avoid deliberate indifference to
the prisoner's safety, implying avoidance
of a known risk; it is not the duty of
due care involved in negligence cases.
This case is unusual, moreover, in that
the risk of serious harm was not only,
perhaps not even mainly, to Woodall, the
person in custody, but also to Ridgway,
the police officer. Unless Ridgway was
suicidal or insane, neither of which
possibility is suggested, he would not
have failed to take additional
precautions against the car crash and
ensuing struggle (and resulting death of
Woodall) had he known that he was running
a substantial risk that Woodall would
crash the car, break out, and perhaps
kill him. Apodaca v. Rio Arriba County
Sheriff's Dept., 905 F.2d 1445, 1446-47
and n. 3 (10th Cir. 1990); Winfield v.
Bass, 106 F.3d 525, 538 (4th Cir. 1997)
(en banc) (concurring opinion). This
circumstance makes it impossible to infer
that Ridgway knew that Woodall and there
fore himself were at substantial risk of
being killed or seriously injured. Hence
the district court was right to grant
summary judgment for Ridgway with respect
to the claim that he exhibited deliberate
indifference to Woodall's safety by
failing to confine him more securely in
the police car.
Had Ridgway been deliberately
indifferent to Woodall's safety at that
stage and thus legally responsible for
Woodall's breakout, then the sequel--the
struggle that ended in Woodall's death--
would, if reasonably foreseeable, be his
responsibility as well. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 216 F.3d 764,
785 (9th Cir. 2000); Jackson v. Sauls,
206 F.3d 1156, 1167-68 (11th Cir. 2000);
cf. Beul v. ASSE Int'l, Inc., 233 F.3d
441, 447-48 (7th Cir. 2000). But as the
premise has not been established, we must
move forward to the struggle after
Woodall forced the car into the ditch and
consider whether Ridgway exhibited
deliberate indifference in the struggle
itself. Clearly not. He made no effort to
use deadly force against Woodall (as he
might have been expected to do in the
circumstances), was reasonable in
enlisting a bystander's aid, and took
reasonable measures to protect Woodall
from excessive force by Lykins by telling
him to ease up on his choke hold. Cf.
MacKay v. Farnsworth, 48 F.3d 491, 492-93
(10th Cir. 1995); Williams v. Willits,
853 F.2d 586, 587, 591 (8th Cir. 1988);
compare Haley v. Gross, supra, 86 F.3d at
642. He could hardly foresee that this
small unarmed man would kill the hefty
Woodall, though it was later discovered
that Lykins, the bystander, was a
martial-arts expert.
Since Ridgway was the only employee of
the City of Pana charged with misconduct
in this case and we have just seen that
he did not violate Woodall's
constitutional rights, the City is in the
clear as well; there was no wrongful
conduct by its employee for it to be
responsible for in this suit. City of Los
Angeles v. Heller, 475 U.S. 796, 799
(1986) (per curiam); Treece v.
Hochstetler, 213 F.3d 360, 364 (7th Cir.
2000). So we move on to the claim against
Lykins. He is a private citizen rather
than a public employee, but there are two
circumstances in which private citizens
can be brought within the grasp of
section 1983 even though the statute is
limited to acts under color of state law.
First and more common, the citizen may
have conspired with a public employee to
deprive the plaintiff of his
constitutional rights. Dennis v. Sparks,
449 U.S. 24, 27-28 (1980); Brokaw v.
Mercer County, 235 F.3d 1000, 1016 (7th
Cir. 2000). As a conspirator, the citizen
is liable, in civil as in criminal law,
for the wrongful acts of the other
conspirators committed within the scope
of the conspiracy. Jones v. City of
Chicago, 856 F.2d 985, 992 (7th Cir.
1988); Loughman v. Consol-Pennsylvania
Coal Co., 6 F.3d 88, 103 (3d Cir. 1993);
Halberstam v. Welch, 705 F.2d 472, 481
(D.C. Cir. 1983). But there is no
suggestion of that here.
Second, the private citizen may have
become a public officer pro tem. Suppose
that in an emergency the police deputized
a bunch of private citizens to help them
enforce the law, and the deputizations
were entirely informal, perhaps not even
in accordance with state or local law.
Nevertheless these "deputies,"
performing, as they would be, public
functions, would be considered to be
acting under color of law within the
meaning of section 1983. Soldal v. County
of Cook, 942 F.2d 1073, 1075 (7th
Cir.1991) (en banc), reversed on other
grounds, 506 U.S. 56, 60-61 n. 6 (1992);
see United States v. Shahid, 117 F.3d
322, 326-27 (7th Cir. 1997); cf. Payton
v. Rush-Presbyterian-St. Luke's Medical
Center, 184 F.3d 623, 628 (7th Cir.
1999); Street v. Corrections Corp. of
America, 102 F.3d 810, 814 (6th Cir.
1996); Rockwell v. Cape Cod Hospital, 26
F.3d 254, 258 (1st Cir. 1994). But we do
not think that the rendering of brief, ad
hoc assistance to a public officer
transforms a bystander into a state
actor, exposing him to liability under
federal law and, by doing so,
discouraging people from helping the
police. We cannot find a case on point
but common sense and analogy carry the
day. To assist the police is a duty of
citizenship; and the performance of a
duty to someone does not turn the
performer into that someone. A private
citizen does not become a policeman by
complaining to a policeman, Hughes v.
Meyer, 880 F.2d 967, 972 (7th Cir. 1989);
Gramenos v. Jewel Companies, Inc., 797
F.2d 432, 435-36 (7th Cir. 1986); Steele
v. City of Bemidji, 257 F.3d 902, 906
(8th Cir. 2001); Redding v. St. Eward,
241 F.3d 530, 532-33 (6th Cir. 2001);
Cruz v. Donnelly, 727 F.2d 79, 79-80, 82
(3d Cir. 1984) (per curiam), nor (the
novel situation presented by this case)
by responding to a policeman's request
for assistance, unless the request is for
such extensive aid that by acceding to
the request and rendering the aid the
private citizen must realize that he has
become a temporary public officer. The
line is vague, of course, but was not
crossed here. So summary judgment was
rightly granted for Lykins as well, and
the dismissal of the entire suit must
therefore be
Affirmed.
RIPPLE, Circuit Judge, concurring in part
and dissenting in part. I join the
judgment and the opinion of the court in
sofar as it affirms the dismissal of this
action against Officer Ridgway and the
City of Pana, Illinois. I cannot,
however, join the panel majority's
characterization of the actions of Mr.
Lykins as those of a purely private actor
who cannot be liable under sec. 1983
because he did not act under color of
state law. The panel majority reaches
that conclusion only by adopting a novel
and overly restrictive view of the "under
color of state law" requirement, a view
that cannot be squared with the
jurisprudence of the Supreme Court of the
United States or of this court. Although
a volunteer rather than an individual
employed by the City, Mr. Lykins not only
took part in a joint activity with a
governmental officer but took directions
from that officer throughout the episode.
He therefore acted not only with and on
behalf of the state but under its command
and control. Under the existing case law
that must govern our decision in this
case, Mr. Lykins is clearly a state
actor.
It cannot be doubted that Mr. Lykins
acted in concert with Officer Ridgway. As
the panel majority's rendition of the
facts makes clear, Mr. Lykins, coming
upon the distressed officer, asked the
officer whether he needed help. He
received an affirmative reply. He then
followed the officer's direction: "Let's
take him to the ground." As the fray
continued, Mr. Lykins asked the officer
whether Woodall could be rendered
unconscious and then informed the officer
that he planned to use a choke hold to do
so. As Mr. Lykins applied pressure to
Woodall's neck, Officer Ridgway, on
several occasions, directed that he
loosen his hold. Clearly, Mr. Lykins
undertook the activity at the request and
with the permission of the officer and,
throughout the ensuing attempt to subdue
Woodall, acted at the officer's
direction. Indeed, he sought the
officer's permission before taking
specific action and kept the officer
informed of his plans. Officer Ridgway,
moreover, gave direction and clearly
considered Mr. Lykins to be under his
control.
The panel majority declares that,
despite the fact that Mr. Lykins operated
at the invitation, with the permission
and under the control of Officer Ridgway,
his actions cannot be characterized as
those of a state actor because there is
no evidence of a conspiracy between the
Officer and Mr. Lykins to violate the
constitutional rights of Woodall. Nor, in
the view of the panel majority, can Mr.
Lykins be said to have been "deputized by
the City or by Officer Ridgway."
The fundamental infirmity with the panel
majority's analysis is that it delineates
the manner in which a private individual
can be considered as acting on behalf of
the state far too parsimoniously to be
compatible with the existing--and
controlling--case law. At the outset, it
must be noted that the majority implies
that the entire "state actor" concept is
a great deal narrower than the Supreme
Court says that it is. As Justice White,
writing for the Court in Lugar v.
Edmonson Oil, 457 U.S. 922, 939 (1982),
pointed out, "something more" than merely
acting in conformity with a state statute
is necessary to warrant the characteriza
tion that a private party is a "state
actor." Referring to the Court's earlier
decision in Flagg Brothers, Inc. v.
Brooks, 436 U.S. 149 (1978), the Justice
continued, that "something more" can be
articulated in a variety of ways:
The Court suggested that "something more"
which would convert the private party
into a state actor might vary with the
circumstances of the case. This was
simply a recognition that the Court has
articulated a number of different factors
or tests in different contexts: e.g., the
"public function" test; the "state
compulsion" test; the "nexus" test; and
in the case of prejudgment attachments, a
"joint action test."
Lugar, 457 U.S. at 939 (internal
citations omitted). That "something more"
in this case is found in the agreement
between Lykins and Ridgway to "take down"
Mr. Woodall. There can be little question
that the two engaged in concerted action
with a common goal. He did not stop and
attack Woodall on his own without
receiving approval from Ridgway. Lykins
looked to Ridgway for instruction
throughout the episode and received
direction from Ridgway.
Not only does the panel majority unduly
narrow the entire state actor doctrine,
but it narrows even further the
formulations pertinent to this case.
Certainly, a conspiracy between a
governmental official and a private actor
will suffice to justify characterizing
the private individual's action in
furtherance of the conspiracy as state
action. So too, the deputizing of a
private individual by a state officer and
the subsequent participation in joint
activity by the two to violate the civil
rights of an individual will suffice. But
these particular instances of state-
individual joint undertakings are hardly
exhaustive of the circumstances that will
necessitate the application of the state
actor doctrine. As the Supreme Court has
stated repeatedly, what is necessary-- in
pure and simple terms--is that the
private actor be "a willful participant
in joint action with the State or its
agents. Private persons, jointly engaged
with state officials in the challenged
action, are acting 'under color' of law
for purposes of sec. 1983 actions."
Dennis v. Sparks, 449 U.S. 24, 27-28
(1980); see also Jackson v. Pantazes, 810
F.2d 426, 429-30 (4th Cir. 1987) (holding
that bail bondsman was state actor where
he searched a home for a felon with a
police officer; the court wrote that "in
cases where a private party and a public
official act jointly to produce the
constitutional violation, both parts of
the Lugar test are simultaneously
satisfied"). This principle, formulated
in United States v. Price, 383 U.S. 787,
794 (1966), and confirmed by Justice
Harlan in Adickes v. S. H. Kress & Co.,
398 U.S. 144, 152 (1970), has become a
cornerstone of sec. 1983 jurisprudence
and followed consistently until today's
opinion. Indeed, the case law of this
circuit acknowledges, quite
straightforwardly, that what is essential
to finding that a private actor has
become a state actor is not the formality
of his relationship with the state or its
agent or the duration of that
relationship. See Wade v. Byles, 83 F.3d
902, 904-05 (7th Cir. 1996). What is
important is whether the state or its
agent is aware of the participation of
the private individual and "effectively
directs, controls, or encourages the
actions of a private party." Id. at 905;
see also Payton v. Rush-Presbyterian-St.
Luke's Med. Center, 184 F.3d 623, 628
(7th Cir. 1999); United States v. Shahid,
117 F.3d 322, 326 (7th Cir. 1997).
These requirements are compatible with
the purpose of sec. 1983. "The purpose of
sec. 1983 is to deter state actors from
using the badge of their authority to
deprive individuals of their federally
guaranteed rights and to provide relief
to victims if such deterrence fails."
Wyatt v. Cole, 504 U.S. 158, 161 (1992);
see also Fries v. Helsper, 146 F.3d 452
(7th Cir. 1998). This section is
designed, therefore, to curb abuses of
state power. As applied to private
individuals, the section attempts to curb
those individuals who, vested with the
indicia of governmental power, are
emboldened to abuse it to the detriment
of those who do not enjoy the same
relationship with the state. Those who
simply report criminal activity to
authorities or give directions to a
police officer upon his inquiry, or
undertake on their own to be of
assistance to the police have not acted
with the knowledge or permission of the
police nor have they acted under the
control and the direction of the police.
While the determination of whether an
individual has become a state actor is a
fact-specific inquiry, the judicial
methodology for assessing those facts is
well-established and compatible with the
purpose of sec. 1983. It is not, as the
panel majority puts it, "vague." Although
the panel majority says there is a
"line," one searches in vain for any
indication of what line it proposes to
substitute for the one established by the
case law.
I can well appreciate the reluctance to
hold liable for damages a private citizen
who fulfills a moral duty to come to the
assistance of a police officer who has
asked for his help in an emergency
situation./1 But the solution does not
lie in the disestablishment of settled
doctrine with respect to the requirements
for determining if an individual is a
state actor. Rather, as the Supreme Court
has noted in Richardson v. McKnight, 521
U.S. 399, 413-14 (1997), the focus ought
to be on whether such individuals ought
to receive a form of immunity from suit
or some similar protection from
liability. See Richardson, 521 U.S. at
413 ("The case does not involve a private
individual briefly associated with a
government body, serving as an adjunct to
government in an essential governmental
activity, or acting under close official
supervision."). Indeed, the fact that the
Court acknowledged the necessity to
address this issue in terms of immunity
casts additional doubt on the panel
majority's declaration that a bystander
who renders brief ad hoc assistance to a
police officer ought not be considered a
state actor.
Because I believe that the working
relationship between Ridgway and Lykins,
evaluated in its totality, warrants a
determination that Lykins was a state
actor, I respectfully dissent from the
contrary portion of the majority's
opinion.
FOOTNOTE
/1 Some states require citizens to come to the aid
of law enforcement officers in certain circum-
stances and citizens who fail to render such aid
expose themselves to criminal sanctions. See,
e.g., S.C. Code sec. 23-14-70 ("any person who
shall fail to respond and render assistance when
summoned by a deputy sheriff to assist in enforc-
ing the laws and in arresting violators or sus-
pected violators thereof shall be guilty of a
misdemeanor"); Vt. Stat. tit. XXIV sec. 301 ("A
person being required in the name of the state .
. . who neglects or refuses to assist such an
officer in the execution of his office . . .
shall be fined not more than $500.").