Dinnell C. Cartwright, as Personal Representative of the Estate of TERRY L.… v. CITY OF MARINE CITY; JAMES VANDERMEULEN and TIMOTHY ROCK, Marine City Police Officers

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0237P (6th Cir.)
File Name: 03a0237p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DINNELL C. CARTWRIGHT, as
Personal Representative of the
Estate of TERRY L.
CARTWRIGHT, Deceased,
Plaintiff-Appellee,
v.
CITY OF MARINE CITY; JAMES
VANDERMEULEN and
TIMOTHY ROCK, Marine City
Police Officers,
Defendants-Appellants.
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No. 02-1728
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-73730—Julian A. Cook, Jr., District Judge.
Argued: May 7, 2003
Decided and Filed: July 21, 2003
2 Cartwright v. City of Marine City, et al. No. 02-1728
*The Honorable James G . Carr, United States District Judge for the
No rthern D istrict of Ohio, sitting by designation.
Before: SUHRHEINRICH and COLE, Circuit Judges;
CARR, District Judge.*
_________________
COUNSEL
ARGUED: Julie O’Connor, O’CONNOR, DeGRAZIA &
TAMM, Bloomfield Hills, Michigan, for Appellant.
Wolfgang Mueller, OLSMAN, MUELLER & JAMES,
Berkley, Michigan, for Appellee. ON BRIEF: Julie
O’Connor, O’CONNOR, DeGRAZIA & TAMM, Bloomfield
Hills, Michigan, for Appellant. Wolfgang Mueller,
OLSMAN, MUELLER & JAMES, Berkley, Michigan, for
Appellee.
_________________
OPINION
_________________
JAMES G. CARR, District Judge. Dinnell C. Cartwright,
as personal representative of the estate of the late Terry L.
Cartwright, sued the City of Marine City, Michigan (“City”),
and two of its police officers for failing to prevent the death
of Terry Cartwright, a pedestrian who was struck and killed
by a truck. The district court denied the defendants’ motion
for summary judgment and claim of qualified immunity. We
hold that the plaintiff has not made out a constitutional
violation against the City or the officers. We therefore
REVERSE the district court’s denial of qualified immunity,
and REMAND the case for dismissal.

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No. 02-1728 Cartwright v. City of Marine City, et al. 3
I. BACKGROUND
The tragic facts of this case are not in dispute. On
October 27, 1998, at around midnight, Terry Cartwright was
walking on the foggy, unlit shoulder of 26 Mile Road in St.
Clair County, Michigan. Defendants James Vandermeulen
and Timothy Rock, police officers for Marine City, Michigan,
saw him on the side of the road while they were riding in their
patrol car to the Speedy-Q convenience store for a prisoner
pickup. The officers stopped and asked Cartwright where he
was going. Cartwright said he was traveling to Yale,
Michigan. The officers offered him a ride to Port Huron,
Michigan, and Cartwright accepted. He got into the back of
the patrol car, and the three drove for eight or nine minutes to
reach the store.
During the trip, the officers asked Cartwright for
identification. Cartwright produced an identification card.
The officers noticed that Cartwright smelled of alcohol, but
did not notice other signs of intoxication, such as bloodshot
eyes or slurred speech.
At the convenience store, the officers took custody of their
prisoner. The officers then told Cartwright that they could not
put the prisoner in the back seat with Cartwright unless
Cartwright consented to a pat-down search. Cartwright
refused to allow the pat-down search, and told the officers
that he did not want a ride. The officers left Cartwright at the
store, and drove away.
According to store clerk John Beaufait, Cartwright entered
the store sometime between midnight and 12:30 a.m., bought
a soft drink, and left. Cartwright returned sometime between
1 a.m. and 1:30 a.m. and tried to buy a beer. Beaufait refused
to sell him the beer because he looked haggard and confused,
and slurred his speech. Beaufait gave Cartwright a cup of
coffee, and Cartwright stayed in the store for about twenty or
thirty minutes, drinking the coffee and talking to Beaufait.
Cartwright then left the store.
4 Cartwright v. City of Marine City, et al. No. 02-1728
Approximately one hour later, at about 2:25 a.m.,
Cartwright was run over by a truck and killed as he lay in the
middle of 26 Mile Road, about two miles from the store. The
autopsy report determined that Cartwright’s blood alcohol
level at the time of his death was .27 percent. A forensic
pathologist determined that Cartwright’s blood alcohol level
at about 12:15 a.m. would have been in excess of .30 percent.
At that level, Cartwright’s speech would have been slurred,
his eyes would have been red, and he would have had trouble
standing.
Cartwright’s wife, Dinnell Cartwright, representing his
estate, initiated this action against the City of Marine City,
Rock, and Vandermeulen. She alleges that the police officers
violated Terry Cartwright’s substantive due process rights
under 42 U.S.C. § 1983, and that the City is liable for failure
to train and supervise its police officers. Plaintiff also asserted
a claim of gross negligence and a violation of Mich. Comp.
Laws § 333.6501 (2003). The district court denied summary
judgment on the constitutional claim, and also denied
summary judgment on the basis of qualified immunity. The
defendants appeal.
II. ANALYSIS
A. Jurisdiction
The district court had jurisdiction under 28 U.S.C § 1331.
This Court has jurisdiction over the defendants’ appeal of the
district court’s denial of qualified immunity pursuant to 28
U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530
(1985) (holding that a district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is appealable under 28 U.S.C. § 1291, though not a final
judgment).
The district court denied the defendants’ motion for
summary judgment based on its conclusion that there were
genuine issues of material fact for trial, never mentioning

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No. 02-1728 Cartwright v. City of Marine City, et al. 5
qualified immunity. The order still is appealable, however,
because “[e]ven when the district court denies summary
judgment without stating its reasons for doing so, a court of
appeals may decide the legal question underlying the
qualified immunity defense.” Christophel v. Kukulinsky, 61
F.3d 479, 485 (6th Cir. 1995) (citing Johnson v. Jones, 515
U.S. 304, 318-19 (1995); see also Klein v. Long, 275 F.3d
544, 549 (6th Cir. 2001) (quoting Shehee v. Luttrell, 199 F.3d
295, 299 (6th cir. 1999) (noting that as long as “a defendant
seeking qualified immunity [is] willing to concede to the facts
as alleged by the plaintiff and discuss only the legal issues
raised by the case” the defendant is entitled to an
interlocutory appeal to show that “the undisputed facts or the
evidence viewed in the light most favorable to the plaintiff
fail to establish a prima facie violation of clear constitutional
law”).
B. Standard of Review
We review de novo a district court’s denial of qualified
immunity. Klein, 275 F.3d at 550 (citation omitted).
C. Qualified Immunity
The plaintiff asserts that the defendant officers and the City
violated Terry Cartwright’s substantive due process rights.
Because a constitutional violation against a city requires, but
is not made out by, an antecedent violation on the part of its
officials, see Bukowski v. City of Akron, 326 F.3d 702, 708
(6th Cir. 2003), we start with the roles played by defendants
Rock and Vandermeulen.
As governmental officials acting within the scope of their
duty, Rock and Vandermeulen can claim qualified immunity.
Id. Qualified immunity is an affirmative defense shielding
governmental officials from liability as long as their conduct
does “not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
6 Cartwright v. City of Marine City, et al. No. 02-1728
plaintiff has the burden of establishing that a defendant is not
entitled to qualified immunity. Rich v. City of Mayfield Hts.,
955 F.2d 1092, 1095 (6th Cir. 1992).
The qualified-immunity inquiry has two principal parts.
First, the court must determine “whether the plaintiff has
shown a violation of a constitutionally protected right.” Davis
v. Brady, 143 F.3d 1021, 1024 (6th Cir. 1998). Then, the
court must discern whether the right is so “clearly
established” that a “reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). We start with the question of
whether the officers violated Terry Cartwright’s due-process
rights at all. Because there was no violation, we do not reach
the clearly-established prong.
D. Section 1983
Plaintiff seeks to hold the government officials responsible,
under § 1983, for the act of private violence that Cartwright
suffered when he was struck and killed by a motorist. To
succeed on a § 1983 claim, plaintiff must show defendants:
1) acted under color of state law; and 2) deprived plaintiff’s
decedent of his rights under the United States Constitution.
Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 452
(6th Cir. 2002) (citations omitted).
1. Color of State Law
Defendants do not contest that they were acting under state
law.
2. Deprivation of Rights
Plaintiff alleges that defendants violated Cartwright’s
constitutional right to substantive due process by failing to
take him into custody. In DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 197 (1989), the
Supreme Court noted that “a State’s failure to protect an

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No. 02-1728 Cartwright v. City of Marine City, et al. 7
individual against private violence simply does not constitute
a violation of the Due Process Clause.” The Court in
DeShaney held that the defendant social services department
was not liable for the injuries a father inflicted on his son,
even though the department had a responsibility to prevent
child abuse, and had taken temporary custody of the child
before returning him to his father. While the Court in
DeShaney denied relief, it explained that it was not
considering a case where a person suffered injuries either
while in state custody or because of state acts that made him
more vulnerable to private violence. Id. at 201. Instead,
DeShaney involved a situation where a state’s involvement
placed the victim “in no worse position than that in which he
would have been had it not acted at all.” Id.
This Court has recognized both of these exceptions to the
general rule announced in DeShaney. Sargi v. Kent City Bd.
of Educ., 70 F.3d 907, 910 (6th Cir. 1995). See Stemler v. City
of Florence, 126 F.3d 856, 867-68 (6th Cir. 1997) (holding
that an injury suffered while in state custody may be violation
of Due Process Clause); Kallstrom v. City of Columbus, 136
F.3d 1055, 1066 (6th Cir. 1998) (holding that there may be
liability under Due Process Clause where state’s affirmative
acts either create or increase risk of private violence). Plaintiff
asserts that both of these exceptions apply to create liability
under the Due Process Clause.
a. Special Relationship
Plaintiff argues that her claim should be treated under the
custodial exception to DeShaney. This Court recently defined
“custody” as the “intentional application of physical force and
show of authority made with the intent of acquiring physical
control.” Ewolski v. City of Brunswick, 287 F.3d 492, 506
(6th Cir. 2002). Under that standard, the defendant officers
did not take Cartwright into custody. In fact, as in Bukowski,
Plaintiff’s grievance is that the officers should have taken
Cartwright into custody, but did not. See Bukowski, 326 F.3d
at 709 n.1 (noting that the plaintiff cannot argue liability
8 Cartwright v. City of Marine City, et al. No. 02-1728
under custodial exception to DeShaney where her argument
is that the city harmed her by failing to take her into custody).
Plaintiff argues that a special relationship existed between
Cartwright and the officers, because the officers had an
affirmative duty to help plaintiff, and because such duty was
created by state statute.
i. Relationship Through Custody
The state has a duty to protect a citizen “when the State by
the affirmative exercise of its power so restrains an
individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic
human needs.” DeShaney, 489 U.S. at 200.
The relationship only arises “when the state restrains an
individual,” Sargi, 70 F.3d at 911, and in this case, decedent
was never in custody. The defendants did not suspect
Cartwright was guilty of wrongdoing; they merely offered to
give him a ride. When Cartwright refused to consent to a pat-
down search, which the officers requested only when the
transfer prisoner was ready to join him in the back seat of the
patrol car, the officers and Cartwright parted company.
Also, Cartwright’s inebriation was not “imposed or
created” by the state. This Court has held that this fact alone
requires a finding that the defendants did not owe the
decedent an affirmative duty, because there was no special
relationship. Sargi, 70 F.3d at 911 (holding that no special
relationship existed between the state and a child who died of
heart failure on a school bus who was not in custody, and
whose condition was not imposed or created by the state); see
also Weeks v. Portgate County Executive Offices, 235 F.3d
275, 277-78 (6th Cir. 2000) (holding that deputy sheriff had
no special relationship with an assault victim who approached
him, bleeding and staggering, and asked for help; though
victim subsequently was beaten to death; officer had no

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No. 02-1728 Cartwright v. City of Marine City, et al. 9
affirmative duty to take decedent into protective custody or
call for medical assistance).
ii. Relationship Through Statute
Plaintiff argues that defendants’ alleged violation of
Section 333.6501 of the Michigan Compiled Laws constitutes
proof of a special relationship.
The statute provides, in pertinent part:
An individual who appears to be incapacitated in a public
place shall be taken into protective custody by a law
enforcement officer and taken to an approved service
program, or to an emergency medical service, or to a
transfer facility pursuant to subsection (4) for subsequent
transportation to an approved service program or
emergency medical service.
MICH. COMP. LAWS § 333.6501(1) (2001).
This argument fails in light of this Court’s opinion in Jones
v. Union County, Tennessee, 296 F.3d 417, 430 (6th Cir.
2002), in which we held that a violation of a state statute does
not create a liberty interest or property right under the Due
Process Clause. Even if the defendants should have taken
decedent into custody under state law, their failure to do so
does not transform that error into a constitutional wrong.
b. State-Created Danger
Plaintiff argues, alternatively, that defendants are liable
under the state-created danger exception, under which state
officials may be found to have violated the substantive due
process rights of people not within their custody “when their
affirmative actions directly increase the vulnerability of
citizens to danger or otherwise place citizens in harm’s way.”
Ewolski, 287 F.3d at 509; see also Kallstrom, 136 F.3d at
1066.
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To show a state-created danger, plaintiff must show: 1) an
affirmative act by the state which either created or increased
the risk that the plaintiff would be exposed to an act of
violence by a third party; 2) 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; and 3) the state knew or should have known that its
actions specifically endangered the plaintiff. Kallstrom, 136
F.3d at 1066.
i. Affirmative Act
In Kallstrom, this court held that releasing private
information in police officers’ personnel files constituted an
affirmative act under the state-created danger theory. 136 F.3d
at 1067. By contrast, failure to act is not an affirmative act
under the state-created danger theory. See, e.g., Sargi, 70 F.3d
at 912-13 (failing to provide bus drivers with a plan for
managing emergencies, taking seizure victim home without
medical intervention, failing to maintain communication
devices on a bus, and failing to tell the bus driver of the
student’s medical condition were not affirmative acts);
Gazette, 41 F.3d at 1065 (failing to rescue kidnap victim and
lying about the case to the victim’s family were not
affirmative acts); Reed v. Knox County Dep’t of Human
Servs., 968 F. Supp. 1212, 1220-22 (S.D. Ohio 1997) (failing
to inform family of foster child’s violent history, placing child
in home, and failing to remove child were not affirmative
acts).
The facts of this case indicate, at most, a failure to act; they
do not rise to the level of affirmative acts which created or
increased the risk that the plaintiff would be exposed to an act
of violence by a third party. Defendant officers took plaintiff
from a place of great danger: the shoulder of a dark, foggy,
two-lane highway. They placed him in a place of lesser
danger: the parking lot of an open convenience store, where
telephones, restrooms, and food and drink were available to
him.

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No. 02-1728 Cartwright v. City of Marine City, et al. 11
Plaintiff argues that the convenience store was a place of
greater danger, because, she alleges, there was more traffic
near the store. No reasonable jury could find that the parking
lot was more dangerous than the shoulder of 26 Mile Road.
Plaintiff also argues that the police invited Cartwright to a
safe place – the back seat of the patrol car – and then released
him at a more dangerous place – the convenience store
parking lot. This is not the proper comparison. The question
is not whether the victim was safer during the state action, but
whether he was safer before the state action than he was after
it. See DeShaney, 489 U.S. at 201 (“That the State once took
temporary custody of Joshua does not alter the analysis, for
when it returned him to his father’s custody, it placed him in
no worse position than that in which he would have been in
had it not acted at all.”).
Plaintiff cannot show that defendant officers created or
increased the risk that Cartwright would be struck by a
vehicle. Defendants did not commit an affirmative act under
the state-created danger theory.
Because plaintiff has failed to allege facts from which a
jury could find that defendants violated Cartwright’s due
process rights, under both the theory of an affirmative duty to
protect him and the theory of a state-created danger,
defendants Vandermeulen and Rock, and, by extension, the
City, are entitled to qualified immunity. Consequently,
plaintiff’s claims under § 1983, as well as her state-law
claims, must fail.
E. Unavoidable Liability
This Court, in Bukowski, recently described the
“unavoidable liability” problem confronting state officers
when it is alleged that they should have taken someone into
protective custody. In that case, a woman and her parents
sued defendant City of Akron and its officials for failing to
take the woman, who had a mental disability, into protective
custody. The woman had disappeared from her home and had
12 Cartwright v. City of Marine City, et al. No. 02-1728
traveled to Akron, Ohio, to meet a man with whom she had
talked online. 326 F.3d at 705. That man raped her. Id. Akron
police found the woman and brought her to the station, where
she told the police and a victim’s advocate that the man was
her “boyfriend” and asked to be returned to his home. She did
not tell anyone that he had harmed her. Id. at 706. The
officials perceived her mental disability but did not believe
she was incapacitated, because she had traveled by bus and
taxi to Akron and had the ability to read and write well
enough to conduct online conversations. Id. After an Akron
police legal advisor told the police that they had no legal
authority to detain her as a juvenile or as a person with a
mental illness, the police told her that she could wait for her
parents at the police station or at a shelter. Id. When she asked
to be returned to the man, the police complied, returning her
to his home, where he raped her. Id. He was convicted of his
crimes and imprisoned. Id. at 708.
This court found that the police did not violate the victim’s
substantive due process rights. Id. at 711. We also noted that
if the Akron police had decided to detain her at the police
station instead of returning her to Hall’s residence, “they may
have faced another lawsuit based on charges of false
imprisonment.” Id. at 711-12 (citing Adams v. Metiva, 31
F.3d 375, 383 (6th Cir. 1994) (“[I]f there is no reason to
further detain a person, he cannot lawfully be detained against
his will.”)).
The facts of this case presented a similar Catch-22 for
officers Vandermeulen and Rock. If they had decided to take
Cartwright into protective custody under § 333.6501 of
Michigan Compiled Laws, they, too, may have faced another
lawsuit based on charges of false imprisonment, on the theory
that Cartwright was not really “incapacitated” and the officers

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No. 02-1728 Cartwright v. City of Marine City, et al. 13
1For purposes of § 333.6501, “incapacitated” means that “an
individual, as a result of the use of alcohol, is unconscious or has his or
her mental or physical functioning so impaired that he or she either poses
an immediate and sub stantial da nger to his or her own health and safety
or is endangering the health and safety of the public.” MICH . CO M P. LA W S
§ 33 3.61 04(3) (2001 ).
had no legal authority to detain him under the statute.1
Plaintiff has not proposed any other grounds on which the
officers could have taken Cartwright into custody. Public
intoxication is not a civil or criminal offense in Michigan.
MICH. COMP. LAWS § 333.6523(1) (2001).
Cartwright refused to allow a pat-down search when the
officers asked him if he would permit it. The state statute
gives officers the right to conduct a “pat-down” search of a
person taken into protective custody. MICH. COMP. LAWS
§ 333.6501(2) (2001). If, however, the officers had done so,
Cartwright also could have claimed that the officers had no
legal authority to search him. Plaintiff has not proposed any
other grounds upon which the officers could have conducted
a pat-down search over Cartwright’s objection before
allowing him to ride in the back seat of the patrol car with the
prisoner.
Defendants Vandermeulen and Rock were not aware of
facts suggesting that a substantial risk of serious harm existed,
given the knowledge they had at the time they decided to let
Cartwright go. Also, as a matter of public policy, if this Court
were to deny defendants’ claim of qualified immunity, it
would discourage police officers from trying to aid citizens in
need. An officer’s decision to stop and pick up a citizen
walking along a dark highway should not result in liability,
unless an exception to the doctrine of qualified immunity
applies.
For these reasons, we hold that officers Vandermeulen and
Rock should have been granted qualified immunity. Because
the City can only be held liable if there is a showing of
14 Cartwright v. City of Marine City, et al. No. 02-1728
liability on the part of its officials, the determination that the
officers did not violate Cartwright’s constitutional rights
resolves plaintiff’s claim against the City as well. See Scott v.
Clay County, 205 F.3d 867, 879 (6th Cir. 2000) (noting that
the “conclusion that no officer-defendant had deprived the
plaintiff of any constitutional right a fortiori defeats the claim
against the County as well”).
III. CONCLUSION
In summary, we hold that plaintiff cannot show any
constitutional violation by City of Marine City police officers
or by the City itself. As a result, we REVERSE the district
court’s denial of qualified immunity. We REMAND the case
to the district court so that it may dismiss the case.

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