GENE A. YOUNG, SR., individually v. City of Mount Ranier

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 GENE A. YOUNG, SR., individually,
and as executor of the estate of
Gene A. Young, Jr.; PHYLLIS
YOUNG,
Plaintiffs-Appellants,
v.
CITY OF MOUNT RANIER; JODY
SHEGAN, Sergeant, Mount Ranier
Police Department; PRINCE GEORGE’S
COUNTY SHERIFF’S OFFICE; RAYMOND No. 99-1269 BUNNER, Deputy Sheriff, Prince
George’s County Sheriff’s
Department; CITY OF COTTAGE CITY;
ROBERT SZABO,
Defendants-Appellees,
and
PRINCE GEORGE’S COUNTY; COTTAGE
CITY POLICE DEPARTMENT; PRINCE
GEORGE’S HOSPITAL CENTER,
Defendants. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-98-1792-PJM)
Argued: September 27, 2000
Decided: January 31, 2001
Before MOTZ and TRAXLER, Circuit Judges, and
Frederick P. STAMP, Jr., Chief United States District Judge
for the Northern District of West Virginia, sitting by designation.

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Affirmed in part and dismissed in part by published opinion. Judge
Traxler wrote the opinion, in which Judge Motz and Chief Judge
Stamp joined.
COUNSEL
ARGUED: Thomas James Gagliardo, GAGLIARDO & ZIPIN, Sil-
ver Spring, Maryland, for Appellants. Frank William Mann, III, Spe-
cial Assistant Attorney General, Baltimore, Maryland; Daniel Karp,
ALLEN, JOHNSON, ALEXANDER & KARP, Baltimore, Maryland;
Samuel Maddox Riley, WEST & MOORE, L.L.C., Baltimore, Mary-
land, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney Gen-
eral of Maryland, Baltimore, Maryland, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Appellants Gene A. Young, Sr., individually and as executor of the
estate of Gene A. Young, Jr., and Phyllis Young (together, the "Par-
ents") appeal from the dismissal of their state and federal claims
against various law enforcement officers and their employers. We
affirm in part and dismiss in part.
I. BACKGROUND
According to the allegations of the original complaint filed by the
Parents, Mount Rainier police officer Jody Shegan and Prince
George’s County Deputy Raymond Bunner responded to a call about
a disturbance in Mount Rainier, Maryland. When they arrived, the
officers found Gene Young lying in the road yelling "get it off me."
J.A. 14. The officers decided to detain Young for an emergency psy-
chiatric evaluation. Young resisted when the officers tried to take him
into custody, and the officers used pepper spray to subdue him. They
handcuffed Young, shackled his legs, and placed him face down in
the back seat of the car belonging to Cottage City police officer Rob-
ert Szabo, who had arrived on the scene. The officers transported
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Young to Prince George’s County Hospital emergency room. At some
point thereafter, a nurse observed that Young was lying face down on
the floor in the emergency room. Young had no pulse when the nurse
turned him over, and efforts to resuscitate him failed. An autopsy
revealed the presence of PCP in Young’s system and indicated that
Young died from sudden cardiac arrhythmia.
The Parents sued the individual law enforcement officers and their
employers. Although the theory of liability is not apparent from the
allegations of the original complaint, the Parents contend that Young
died from "positional asphyxiation" caused by a combination of the
use of pepper spray, which swells the airways, and his placement in
the police cruiser and the emergency room in a face-down position,
which compresses the airways and can further restrict the ability to
breathe.1
The original complaint asserted state law negligence, wrongful
death, and survival claims, as well as constitutional claims under 42
U.S.C.A. § 1983 (West Supp. 2000). The claims were asserted against
Mount Rainier and Officer Jody Shegan; Prince George’s County,
Prince George’s County Sheriff’s Department, and Deputy Raymond
Bunner; Cottage City and Officer Robert Szabo; and Prince George’s
Hospital Center.
In the state law causes of action, the Parents alleged that the defen-
dants failed to protect Young from harm while he was in their custody
and care. As to the section 1983 claims, the Parents alleged that offi-
cers committed "outrageous and malicious physical abuse" against
Young and that the governmental employers "knew or should have
known of the dangers of physical restraint and the use of pepper spray
upon drug users, especially those using phencyclidine (PCP)" and
should have developed adequate safety measures to be used which
would maximize the safety of individuals like Plaintiffs’ son.
1At the hearing on the motion to dismiss, the district court and the
defendants accepted the Parents’ characterization of their claims without
raising any real question as to whether the positional asphyxiation theory
was encompassed by the allegations of the original complaint.
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After the action was removed to federal court, motions to dismiss
were filed by the City of Mount Rainier, the Office of the Sheriff of
Prince George’s County, and Deputy Bunner. A few days before the
hearing was scheduled on those motions, the Parents filed a motion
seeking permission for "alternate service" on Officer Shegan. On the
day of the hearing, the Parents sought leave to file an amended com-
plaint, and Cottage City and Officer Szabo filed motions to dismiss
the complaint.
At the hearing, the district court refused to consider the Parents’
motion to amend2 and also refused to consider the motions to dismiss
filed by Cottage City and Officer Szabo. As to the motion to amend,
the court stated, "[w]e will see whether there’s any cause of action
that survives after [the disposition of the other motions to dismiss],
there may or may not be leave to amend." J.A. 35. As to Cottage
City’s motions to dismiss, the court stated, "[i]f in fact this case sur-
vives and there is an amended complaint, you can file a motion to dis-
miss then." J.A. 34.
The district court then dismissed the section 1983 claim asserted
against Mount Rainier with leave to amend the complaint to "be more
specific as to the alleged policy, custom, or usage." J.A. 94. As to
Deputy Bunner, the district court dismissed the section 1983 claim on
the grounds that the facts alleged in the complaint failed to state a
constitutional violation and, alternatively, that Deputy Bunner was
entitled to qualified immunity. The district court also dismissed the
state law claims, concluding that Maryland law granted Bunner
immunity from the claims.
The district court dismissed the claims against the Office of the
Sheriff of Prince George’s County, noting that the "office of the sher-
iff" was not an entity capable of being sued. The court did, however,
grant the Parents leave to amend their complaint to properly name the
sheriff.
As to Officer Shegan, whom the Parents had been unable to serve,
the district court granted the Parents leave to serve him by alternate
2The Parents do not challenge on appeal the district court’s refusal to
consider the first amended complaint.
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means. The court suggested that any claims against Shegan would
ultimately be dismissed under the same analysis used for the claims
against Deputy Bunner, but the court indicated that it would be
improper to dismiss the claims against Shegan without giving the Par-
ents an opportunity to serve him and make their claims against him.
The district court did not consider the viability of the claims against
the other named defendants.
Sometime after this hearing, the Parents filed a second amended
complaint (the "amended complaint"). The amended complaint
asserted only section 1983 failure-to-train claims against Mount Rai-
nier, Cottage City, and the Sheriff of Prince George’s County
(together, the "governmental employers"), omitting all claims against
the individual law enforcement officers and all state law claims
against any defendant. The governmental employers thereafter moved
to dismiss the claims asserted in the amended complaint. The district
court dismissed the amended complaint, concluding that there could
be no liability on the part of the governmental employers in light of
the previous dismissal of the claims against the individual defendants.
The Parents then filed this appeal. They challenge the district
court’s dismissal of the state and federal claims against the individual
defendants asserted in the original complaint as well as the dismissal
of the federal claims asserted against the governmental employers in
the amended complaint.
II. EFFECT OF AMENDED COMPLAINT
As a threshold matter, we must determine whether the Parents’
challenges to the dismissal of the claims asserted against the individ-
ual law enforcement officers in the original complaint are properly
before us.
As a general rule, "an amended pleading ordinarily supersedes the
original and renders it of no legal effect." Crysen/Montenay Energy
Co. v. Shell Oil Co. (In re Crysen/Montenay Energy Co.), 226 F.3d
160, 162 (2d Cir. 2000); see also 6 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice & Procedure § 1476 (2d
ed. 1990) ("A pleading that has been amended . . . supersedes the
pleading it modifies. . . . Once an amended pleading is interposed, the
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original pleading no longer performs any function in the case . . . .").
According to the Appellees, because the Parents failed to include any
claims against the individual officers in the amended complaint,
which superseded the original complaint, the Parents have waived
their right to challenge the dismissal of the claims against the individ-
ual defendants.3 We disagree.
Most circuits refuse to require a plaintiff to replead dismissed
claims in order to preserve the right to appeal the dismissal. See Davis
v. TXO Prod. Corp., 929 F.2d 1515, 1518 (10th Cir. 1991) ("We
believe that a rule requiring plaintiffs who file amended complaints
to replead claims previously dismissed on their merits in order to pre-
serve those claims merely sets a trap for unsuspecting plaintiffs with
no concomitant benefit to the opposing party . . . . The district court’s
dismissal of the claim made clear that any attempt by appellant to re-
allege that claim would be futile." (footnotes and internal citations
omitted)); accord In re Crysen/Montenay, 226 F.3d at 162; Dunn v.
Air Line Pilots Ass’n, 193 F.3d 1185, 1191 n.5 (11th Cir. 1999), cert.
denied, 120 S. Ct. 2197 (2000); see also Wright & Miller, § 1476 ("A
rule that a party waives all objections to the court’s dismissal if he
elects to amend is too mechanical . . . . Without more, the action of
the amending party should not result in completely denying the right
to appeal the court’s ruling."). While the Ninth Circuit in the past
adhered to the rule urged by the Appellees, see, e.g., London v. Coo-
pers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), it now applies the
rule only in cases where the claims were dismissed with leave to
amend. See Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir. 1998)
(noting that repleading rule does not apply to claims dismissed by
summary judgment and refusing to apply it to claims dismissed with-
out leave to amend: "If the plaintiff were required to reallege claims
dismissed on summary judgment to avoid waiving them, plaintiff’s
counsel would be forced to bear the risk of sanctions to preserve his
client’s right to appeal. Because this concern applies with equal force
3As noted above, the Parents asserted state and federal claims against
the governmental employers in the original complaint, but asserted only
federal constitutional claims against them in the amended complaint. The
Parents do not challenge on appeal the dismissal of any state law claims
against the governmental employers.
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to claims dismissed without leave to amend, we decline to apply the
[repleading] rule." (citations omitted)).
We likewise conclude that it is needlessly formalistic to require a
plaintiff to replead claims already dismissed without leave to amend
in order to preserve the right to appeal the dismissal. By dismissing
the claims in such a manner, the district court has quite clearly given
its view of the viability of the claims, a view not made any clearer or
more final by requiring the plaintiff to re-allege the already rejected
claims. Accordingly, we conclude that, if a claim is dismissed without
leave to amend, the plaintiff does not forfeit the right to challenge the
dismissal on appeal simply by filing an amended complaint that does
not re-allege the dismissed claim.4
The district court dismissed the claims against Deputy Raymond
Bunner on the merits, without leave to amend. The Parents, therefore,
may challenge on appeal the dismissal of their claims against Bunner
notwithstanding their failure to re-allege the claims against him in the
amended complaint.
The district court, however, did not consider the claims against
Officer Szabo and Officer Shegan, and those claims therefore
remained viable after the court issued its first dismissal order. The
question, then, is whether the Parents may proceed with their claims
against these two officers notwithstanding their failure to allege any
claims against the officers in their amended complaint. We conclude
they cannot.
The general rule, as stated above, is that an amended pleading
supersedes the original pleading, rendering the original pleading of no
effect. Thus, if an amended complaint omits claims raised in the origi-
nal complaint, the plaintiff has waived those omitted claims. The rule
that we have adopted today is simply an exception to the general rule
of waiver—that is, if the claims not included in the amended com-
plaint have previously been dismissed by the court without leave to
amend, then the waiver rule does not apply and the plaintiff may chal-
4We do not consider whether claims dismissed with leave to amend
must be re-alleged in an amended complaint in order to preserve the right
to appeal the dismissal, as that issue is not before us.
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lenge the dismissal on appeal without repleading the dismissed
claims. In this case, because the district court did not dismiss the
claims against Officers Shegan and Szabo, those claims fall squarely
within the general rule and thus must be deemed waived or aban-
doned by the Parents.
We do not believe it to be inconsistent to allow the Parents to pro-
ceed against Deputy Bunner but not Officers Shegan and Szabo. We
do not require the Parents to re-allege their claims against Deputy
Bunner because the district court had already dismissed the claims
outright once and there is no reason to make the court dismiss them
a second time. But the same simply cannot be said of the claims
against Officers Shegan and Szabo. The district court, had it in fact
considered the viability of the claims against Officers Shegan and
Szabo, would likely have dismissed the claims under the same analy-
sis used to dismiss the claims against Deputy Bunner. That we think
we know what a district court probably would have done in a given
situation, however, is no substitute for the district court actually doing
it. The appeals process exists to correct errors by the judge or jury;
it cannot be used to correct strategic decisions made by a party’s
attorney. While the court almost certainly would have dismissed the
claims against Officer Shegan and Officer Szabo, the fact remains
that the court did not dismiss the claims. Instead, the Parents chose
not to include any claims against these officers in their amended com-
plaint, thus obviating the need for Officer Shegan to file a motion to
dismiss, and mooting Officer Szabo’s still-pending motion to dismiss.
Thus, while there conceivably might be an error by the district
court with regard to the claims against Deputy Bunner to which the
Parents can point on appeal, there simply is no error by the district
court as to the claims against Officers Shegan and Szabo to which the
Parents can point. Because no action was taken by the district court
in connection with the claims against Officers Shegan and Szabo, we
cannot excuse the Parents’ failure to re-allege their claims against
these officers in the amended complaint. The Parents, therefore, may
challenge on appeal the dismissal of their claims against Deputy Bun-
ner. We will not, however, consider any claims asserted against Offi-
cers Shegan and Szabo and we dismiss the appeal as to any claims
against them.
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III. CLAIMS AGAINST DEPUTY BUNNER
A. Constitutional Claims
When presented with a section 1983 claim to which qualified
immunity has been asserted as a defense, a court must first determine
whether the plaintiff has alleged the deprivation of a constitutional
right. Only if a constitutional claim has been alleged should we pro-
ceed to the determination of whether qualified immunity shields the
defendant from liability. See Wilson v. Layne, 526 U.S. 603, 609
(1999); Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir.
2000).
1. Standard for Measuring Conduct
Determining whether the original complaint sufficiently alleges a
constitutional violation requires us to resolve a threshold question
about the standard by which Deputy Bunner’s conduct should be mea-
sured. The district court concluded that the conduct must be measured
under a "shocks the conscience" standard, while the Parents contend
that "deliberate indifference" is the proper standard. The answer to
this question depends on the nature of the claims asserted by the Par-
ents.
Although the original complaint refers to "malicious abuse" by the
law enforcement officers, the Parents’ claims are not grounded in the
Fourth Amendment—in their brief and during oral argument they spe-
cifically disavowed any contention that the law enforcement officers
improperly took Young into custody or that they used excessive force
when taking him into custody. Instead, the Parents proceed solely
under the Fourteenth Amendment, contending that the defendants vio-
lated Young’s constitutional rights by failing to protect him from a
known risk of harm (the risk of asphyxiation when restrained in a
prone position, particularly after being sprayed with pepper spray), or,
stated somewhat differently, that the defendants violated Young’s
constitutional rights by their indifference to his serious medical needs
brought about by the pepper spray, restraints, and face-down position-
ing.
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Broadly speaking, the substantive due process provision of the
Fourteenth Amendment protects against egregious, arbitrary govern-
mental conduct. See County of Sacramento v. Lewis, 523 U.S. 833,
845-46 (1998). Only governmental conduct that "shocks the con-
science" is actionable as a violation of the Fourteenth Amendment. Id.
at 846. As the Supreme Court recognized in Lewis, however, deter-
mining whether conduct is sufficiently egregious to amount to a Four-
teenth Amendment violation is far from an exact science. See id. at
847 ("While the measure of what is conscience-shocking is no cali-
brated yard stick, it does . . . point the way." (internal quotations
marks and alterations omitted)). Depending on the circumstances, dif-
ferent degrees of fault may rise to the level of conscience-shocking.
See Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999)
("The exact degree of wrongfulness necessary to reach the
‘conscience-shocking’ level depends upon the circumstances of a par-
ticular case.").
It is clear that "liability for negligently inflicted harm is categori-
cally beneath the threshold of constitutional due process," and that
conduct "intended to injure in some way unjustifiable by any govern-
ment interest is the sort of official action most likely to rise to the
conscience-shocking level." Lewis, 523 U.S. at 849. Nonetheless,
under certain circumstances, conduct "falling within the middle
range" of culpability—that is, conduct that is more than negligent but
less than intentional—can give rise to liability under the Fourteenth
Amendment. Id.
As noted above, the Parents contend that the defendants failed to
protect Young from a known and substantial risk of harm while he
was in their custody and that the defendants were deliberately indif-
ferent to his medical needs. These claims fall within the limited cir-
cumstances where conduct in the "middle range" of culpability—
specifically, conduct that amounts to "deliberate indifference"—is
viewed as sufficiently shocking to the conscience that it can support
a Fourteenth Amendment claim. See, e.g., Nicini v. Morra, 212 F.3d
798, 810 (3rd Cir. 2000) (en banc) (noting that "[i]n some circum-
stances, conduct that is deliberately indifferent will shock the con-
science"); Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998)
(explaining that deliberate indifference "is merely the manifestation
in certain situations of a more general inquiry, which is whether the
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government conduct at issue shocks the conscience" (internal quota-
tion marks omitted)).
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held
that prison officials violate the Eighth Amendment when they are
deliberately indifferent to the serious medical needs of their prisoners.
See id. at 104-05. Pretrial detainees5 are entitled to at least the same
protection under the Fourteenth Amendment as are convicted prison-
ers under the Eighth Amendment. See City of Revere v. Massachusetts
Gen. Hosp., 463 U.S. 239, 243-44 (1983); Hill v. Nicodemus, 979
F.2d 987, 991-92 (4th Cir. 1992). Thus, deliberate indifference to the
serious medical needs of a pretrial detainee violates the due process
clause. See Lewis, 523 U.S. at 850 (concluding that, because it is suf-
ficient for liability under the 8th Amendment, "deliberately indifferent
conduct must also be enough to satisfy the fault requirement for due
process claims based on the medical needs of someone jailed while
awaiting trial"); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999)
(applying deliberate indifference standard to pretrial detainee’s claim
that he was denied needed medical treatment), cert. denied, 120 S. Ct.
1673 (2000); Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir. 1990) ("The
Fourteenth Amendment right of pretrial detainees, like the Eighth
Amendment right of convicted prisoners, requires that government
officials not be deliberately indifferent to any serious medical needs
of the detainee.").
While the Parents sometimes couch their claims in terms of the
failure to protect Young from a substantial risk of harm, such a claim
is no different in any meaningful respect from the indifferent-to-
medical-needs claim and is governed by the same standard of deliber-
ate indifference. See Wilson v. Sieter, 501 U.S. 294, 303 (1991) (find-
ing "no significant distinction between claims alleging inadequate
medical care and those alleging inadequate ‘conditions of confine-
ment’" and concluding that an inmate’s failure-to-protect claim must
5Young perhaps was not a typical pretrial detainee given that there is
no indication that he was under arrest or would later have been arrested.
Nonetheless, Young was involuntarily taken into custody by the defen-
dants and they owed him the same duties owed to a more typical pretrial
detainee. See Buffington v. Baltimore County, Md., 913 F.2d 113, 119
(4th Cir. 1990).
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be measured under the deliberate indifference standard); Hare v. City
of Corinth, 74 F.3d 633, 644 (5th Cir. 1996) (en banc) (noting "the
absence of a constitutionally significant distinction between failure-
to-protect claims and medical care claims"). We therefore conclude
that the Parents’ claims must be measured under a standard of deliber-
ate indifference.
2. Sufficiency of the Allegations
The next question we must resolve is whether the original com-
plaint sufficiently alleges that Deputy Bunner was deliberately indif-
ferent to Young’s medical needs or to a substantial risk of harm faced
by Young. "Deliberate indifference is a very high standard—a show-
ing of mere negligence will not meet it." Grayson, 195 F.3d at 695.
Deliberate indifference requires a showing that the defendants actu-
ally knew of and disregarded a substantial risk of serious injury to the
detainee or that they actually knew of and ignored a detainee’s serious
need for medical care. See White ex rel. White v. Chambliss, 112 F.3d
731, 737 (4th Cir. 1997) ("A claim of deliberate indifference . . .
implies at a minimum that defendants were plainly placed on notice
of a danger and chose to ignore the danger notwithstanding the
notice."); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) ("[A]
prison official cannot be found liable . . . for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw
the inference."). In this case, the allegations of the original complaint
fall far short of alleging deliberate indifference on the part of Deputy
Bunner.
The relevant allegations of the original complaint are that the offi-
cers used pepper spray and hand and leg restraints when taking
Young into custody and then placed him face down in the police car
and in the emergency room. The Parents appear to believe that, con-
sidering the known effects of pepper spray on a PCP user, the use of
pepper spray on a person under the influence of PCP can support lia-
bility under the Fourteenth Amendment. Assuming the correctness of
the Parents’ premise—that pepper spray is dangerous for a PCP user
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—we nonetheless reject it as a basis for the finding of a constitutional
violation in this case.
The original complaint alleges only that Young was behaving
strangely and that the autopsy revealed that Young had PCP in his
system when he died; there is no allegation that the officers knew or
even suspected Young was under the influence of PCP. Thus, to the
extent the Parents’ claims are premised upon the use of pepper spray
on a person under the influence of PCP, the original complaint does
not allege the existence of a serious risk of harm that was faced by
Young, much less a risk known to and disregarded by the law
enforcement officers. And given Young’s erratic behavior and his
acknowledged struggle with the law enforcement officers, the mere
use of pepper spray in this case cannot be considered a Fourteenth
Amendment violation.
The original complaint is also insufficient to allege a constitutional
violation premised on the Parents’ theory that Young died from posi-
tional asphyxiation caused by the combination of pepper spray,
restraints, and face-down positioning. As noted above, the original
complaint does not allege that Deputy Bunner suspected Young was
under the influence of PCP when Young was taken into custody.
Moreover, the complaint does not allege that Young lost conscious-
ness, was ever in distress while being transported to the hospital, or,
perhaps even more fundamentally, that Young died from asphyxia-
tion. Instead, the complaint alleges the cause of death posited in the
autopsy report: sudden cardiac arrhythmia possibly caused by "a com-
bination of the stimulant drug intoxication . . . and the physical
restraint for his violent behavior." J.A. A15. We fail to see how an
allegation of death caused by cardiac arrhythmia can support the now-
espoused theory that Young died from asphyxiation. See Bender v.
Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998) ("[W]hile
notice pleading does not demand that a complaint expound the facts,
a plaintiff who does so is bound by such exposition.").
Nonetheless, whether Young died from a "sudden interruption in
heart activity" as alleged in the complaint, J.A. 15, or from positional
asphyxiation as the Parents now contend, there simply are no allega-
tions in the complaint from which we can conclude that the officers
were deliberately indifferent to Young’s safety or his serious medical
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needs. Reading the original complaint in the light most favorable to
the Parents and giving the Parents the benefit of all reasonable infer-
ences, as we are required to do at this stage of the proceedings, see,
e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999), the complaint simply establishes that Young struggled with
law enforcement officers, was sprayed with pepper spray, restrained,
transported to a hospital in a prone position, and died sometime there-
after. While the complaint alleges that the officers knew or should
have known about the potential problems with the use of pepper spray
and restraints on PCP users, these allegations, particularly absent any
suggestion that Young exhibited any distress during the time he was
in the custody of the officers, at most support an inference that the
defendants were negligent in some unidentified way. Negligence,
however, is insufficient to support a claim of a Fourteenth Amend-
ment violation.6 See Lewis, 523 U.S. at 849; Grayson, 195 F.3d at
695.
To be sure, the original complaint throws in words and phrases
such as "deliberate indifference," "malicious," "outrageous," and
"wanton" when describing the conduct of the officers. The presence,
however, of a few conclusory legal terms does not insulate a com-
plaint from dismissal under Rule 12(b)(6) when the facts alleged in
the complaint cannot support a finding of deliberate indifference. See
Payne v. Churchich, 161 F.3d 1030, 1041 (7th Cir. 1998) (dismissing
Fourteenth Amendment claim even though "the complaint contains
the single cursory allegation" of deliberate indifference where "the
conduct alleged to support that claim constitutes negligence and noth-
ing more"); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996) (noting that
6The amended complaint includes some factual allegations not con-
tained in the original complaint. For example, the original complaint
alleges only that pepper spray was used, while the amended complaint
alleges that so much pepper spray was used that it pooled in the street.
The Parents suggest that we should combine the allegations in the origi-
nal complaint with those in the amended complaint when considering
whether the claims were properly dismissed. We disagree. The suffi-
ciency of the claims against Deputy Bunner must be determined by look-
ing only to the allegations in the original complaint, the only pleading
containing claims against Bunner, and the only pleading considered by
the district court when it dismissed the claims.
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"bald assertions and conclusions of law" do not prevent dismissal of
a complaint under Rule 12(b)(6)); Frey v. City of Herculaneum, 44
F.3d 667, 671 (8th Cir. 1995) (explaining that although pleadings
must be liberally construed, "[a]t the very least . . . the complaint must
contain facts which state a claim as a matter of law and must not be
conclusory."). The original complaint does not allege the existence of
a substantial risk of serious harm to Young known to and disregarded
by Deputy Bunner or the existence of any serious medical needs
known to and disregarded by Bunner.7 The original complaint, there-
fore, fails to allege the deliberate indifference required to sustain the
Parents’ Fourteenth Amendment claims and the constitutional claims
asserted against Deputy Bunner were properly dismissed. Because we
conclude that the complaint does not allege a constitutional violation,
we have no need to consider the question of qualified immunity.
B. State Law Claims
When dismissing the claims asserted against Deputy Bunner, the
district court first determined that the allegations of the original com-
plaint were probably sufficient to prevent the application of the state
personnel immunity established by section 5-522 of Maryland’s
Courts and Judicial Proceedings Article. See Md. Code Ann., Cts. &
Jud. Proc. § 5-522(b) (Michie Supp. 2000). Nonetheless, the district
court found that Bunner was entitled to immunity established by sec-
tion 5-624 of the Courts and Judicial Proceedings Article. See Md.
Code Ann., Cts. & Jud. Proc. § 5-624(c) (Michie 1998).
7We reject the Parents’ suggestion at oral argument that an inference
of deliberate indifference can be drawn from the officers’ "abandonment"
of Young at the hospital. The original complaint does not allege that
Young was abandoned at the hospital. Indeed, the facts that are alleged
in the original complaint are completely inconsistent with this most
recent theory of liability. The complaint alleges that the defendants and
hospital security guards took Young into the emergency room; there is
no allegation that the law enforcement officers left the hospital or that
hospital personnel failed to properly attend to Young. Thus, the only
inference that can be drawn from the complaint is that the law enforce-
ment officers turned over the care of Young to hospital personnel. We
fail to see how such conduct could be considered abandonment, much
less deliberate indifference to Young’s serious medical needs.
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Section 5-624 provides that "[a]ny peace officer who, in good faith
and with reasonable grounds, acts as a custodian of an emergency
evaluee is not civilly or criminally liable for acting as a custodian."
Id. The district court concluded that Bunner acted in good faith and
with reasonable grounds when taking Young into custody, and that
Bunner was therefore entitled to immunity under section 5-624.
Accordingly, the district court dismissed the state law claims asserted
against Bunner.
By its terms, section 5-624 grants a peace officer immunity for act-
ing as a custodian of an emergency evaluee. While this statute
appears, at a minimum, to protect an officer from claims such as false
imprisonment based on the act of taking the evaluee into custody, it
does not appear to offer an officer blanket immunity for anything and
everything that might occur after the evaluee is taken into custody.
Here, the Parents do not challenge the decision to take Young into
custody, but contend that the officers failed to protect him from a
known risk of harm once he was in their custody, and we question
whether such a claim would fall within the scope of immunity granted
by section 5-624. We need not, however, resolve this question,
because we conclude that Deputy Bunner is entitled to state personnel
immunity under section 5-522 of the Code. See Brewster of Lynch-
burg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3 (4th Cir. 1994)
("[E]ven though we disagree with the reasoning of the district court,
we may affirm the result on different grounds if fully supported by
the record.").
Section 5-522 provides that state personnel8 are immune from suit
and from liability for tortious conduct committed within the scope of
their public duties and without malice or gross negligence if the State
has waived sovereign immunity. See Md. Cts. & Jud. Proc. § 5-
522(b). Because the state of Maryland has waived sovereign immu-
nity for the tort claims involved here, see Md. Code Ann., State Gov’t
§ 12-104(a) (Michie 1999); Md. Code Ann., Cts. & Jud. Proc. § 5-
522(a), the question is whether the original complaint sufficiently
alleges facts that support an inference of the existence of malice or
gross negligence.
8Deputy sheriffs are considered "state personnel" under Md. Code
Ann., State Gov’t § 12-101(a)(6) (Michie Supp. 2000).
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Under Maryland law, the malice necessary to defeat immunity
under section 5-522 is what is often referred to as "actual malice"—
that is, conduct "motivated by ill will, by an improper motive, or by
an affirmative intent to injure." Shoemaker v. Smith, 725 A.2d 549,
560 (Md. 1999). A similarly high threshold must be crossed to estab-
lish gross negligence—the defendant must have "acted with wanton
or reckless disregard for the safety of others." Boyer v. State, 594
A.2d 121, 132 (Md. 1991); cf. State v. Albrecht, 649 A.2d 336, 348
(Md. 1994) (defining gross negligence as conduct "so heedless and
incautious as necessarily to be deemed unlawful and wanton, mani-
festing such a gross departure from what would be the conduct of an
ordinarily careful and prudent person under the same circumstances
so as to furnish evidence of an indifference to consequences." (cita-
tion and internal quotation marks omitted)). For largely the same rea-
sons that the allegations of the original complaint are insufficient to
give rise to an inference of deliberate indifference, they are likewise
insufficient to give rise to an inference of gross negligence or malice.
Given that the complaint itself alleges that Young struggled with
the officers, the mere use of pepper spray and restraints does not give
rise to an inference of malice or gross negligence. Moreover, as previ-
ously discussed, there is no allegation that the officers suspected that
Young was under the influence of PCP. Therefore, even if the Parents
are correct that it can be dangerous to use pepper spray on PCP users,
no inference of malice or gross negligence can be drawn from the
allegations regarding the use in this case of pepper spray and
restraints after an acknowledged struggle. And because the original
complaint does not allege any facts consistent with the Parents’ posi-
tional asphyxiation theory and does not allege that Young was ever
in distress or lost consciousness while in the officers’ custody, the fact
that Young was placed face down in the police car and in the hospital
is insufficient to establish the requisite degree of fault.
At best, the original complaint alleges negligence on the part of the
defendants. But just as negligence is insufficient to sustain a Four-
teenth Amendment claim, it is likewise insufficient to establish the
malice or gross negligence necessary to overcome Maryland’s state
employee immunity. See Wells v. Maryland, 642 A.2d 879, 885 (Md.
Ct. Spec. App. 1994) (holding that allegations in complaint, which
suggested "individual negligence and bureaucratic mismanagement
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and incompetence" and "lack of clear procedures and protocols" did
not allege gross negligence because the allegations did not indicate
"malice, evil intention, or wanton, wilful, or reckless disregard for
human life or the rights of others"). Deputy Bunner is therefore pro-
tected by section 5-522 from the state law claims asserted against
him, and the dismissal of the claims was proper.
IV. CLAIMS AGAINST THE GOVERNMENTAL EMPLOYERS
As previously discussed, the Parents’ amended complaint included
only section 1983 failure-to-train claims against the governmental
employers. The district court dismissed these claims, concluding that
the absence of any viable constitutional claim against the individual
defendants prevented the claims from being asserted against the gov-
ernmental employers. The Parents argue that the district court erred,
and that section 1983 failure-to-train claims, at least in some cases,
should be allowed to proceed against employers even in the absence
of any viable claims against an individual defendant. We disagree.
The law is quite clear in this circuit that a section 1983 failure-to-
train claim cannot be maintained against a governmental employer in
a case where there is no underlying constitutional violation by the
employee. See Grayson, 195 F.3d at 697 ("As there are no underlying
constitutional violations by any individual, there can be no municipal
liability."); Temkin v. Frederick County Comm’rs, 945 F.2d 716, 724
(4th Cir. 1991) ("A claim of inadequate training under section 1983
cannot be made out against a supervisory authority absent a finding
of a constitutional violation on the part of the person being super-
vised.").9
9The Parents urge us to ignore our own cases and instead accept the
analysis of the Third Circuit Court of Appeals. See Fagan v. City of
Vineland, 22 F.3d 1283, 1293-94 (3d Cir. 1994) ("We hold that a munici-
pality can be liable under section 1983 and the Fourteenth Amendment
for a failure to train its police officers with respect to high-speed automo-
bile chases, even if no individual officer participating in the chase vio-
lated the Constitution."). We are, of course, bound by the precedent in
our own circuit. See, e.g., Etheridge v. Norfolk & Western Ry. Co., 9
F.3d 1087, 1090 (4th Cir. 1993) ("A decision of a panel of this court
becomes the law of the circuit and is binding on other panels unless it
is overruled by a subsequent en banc opinion of this court or a supersed-
ing contrary decision of the Supreme Court." (internal quotation marks
omitted)).
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We have already concluded that the conduct of Deputy Bunner
complained of by the Parents does not amount to a constitutional vio-
lation by Bunner, and the Parents allege no different conduct on the
part of Officers Shegan and Szabo. Because the Parents have failed
to allege a constitutional violation on the part of any law enforcement
officer, the district court properly dismissed the failure-to-train claims
asserted against the governmental employers.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal
of the state law and constitutional claims asserted against Deputy
Bunner and the constitutional claims against the governmental
employers. We dismiss the appeal as to any claims the Parents
attempt to assert against Officers Shegan and Szabo.
AFFIRMED IN PART; DISMISSED IN PART
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