NTOA Command College

Ryder v Freeman

No. 1:95cv67.
918 F.Supp. 157 (1996)
Ann RYDER, Plaintiff, v. Franklin FREEMAN, in his official capacity as Secretary of the North Carolina Department of Correction, Defendant.
United States District Court, W.D. North Carolina, Asheville Division.
February 22, 1996.
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Attorney(s) appearing for the Case
Charles R. Brewer, Asheville, NC, for plaintiff.
James Peeler Smith, Michelle Bradshaw, N.C. Department of Justice, Valerie L. Bateman, N.C. Department of Justice, Assistant Attorney General,
Raleigh, NC, W. Dale Talbert, Neil Dalton, Isaac T. Avery, III, Robert T. Hargett, Asst. Atty. General, NC Dept. of Justice, Raleigh, NC, for defendant.
THORNBURG, District Judge.
THIS MATTER is before the court upon defendant’s Motion to Dismiss this matter under Rules 12(b)(1), 12(b)(2), and 12(b)(6), Federal
Rules of Civil Procedure. Inasmuch as plaintiff concedes that she seeks only prospective injunctive relief, the court will decline
decision on defendant’s Rule 12(b)(1) and Rule 12(b)(2) motions and proceed immediately to defendant’s contention that plaintiff has
failed to state either a substantive or procedural due process violation.
I. Background
Plaintiff is an employee of the North Carolina Department of Correction who serves as a uniformed prison guard in a state prison
facility located in Buncombe County. As part of her training, the state requires that she undergo “mace training,” which involves
being sprayed in the face with pepper mace. Plaintiff contends, and defendant does not dispute, that her employment as a uniformed
prison guard will be terminated if she fails to undergo the challenged mace training.
Plaintiff claims that this component of her training violates her rights to both procedural and substantive due process under the
fourteenth amendment to the United States Constitution. As to procedural due process, she contends that the required training will
deprive her of liberty, which she defines as freedom from bodily harm. Also claiming that the policy violates substantive due process,
plaintiff contends that mace training “shocks the conscience” and is “arbitrary and capricious.” In her brief, she explains that “in
generally alleging a violation of substantive due process [she] has implicated her right to privacy and bodily integrity and security.”
Plaintiff’s brief, at 12.
II. Motion to Dismiss for Failure to State a Claim: Rule 12(b)(6)
A. Standard
Defendant has moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiff has failed to
state a cognizable claim. Rule 12(b) authorizes dismissal based on a dispositive
[918 F.Supp. 160]
issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct.
2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines
litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law
which are obviously insupportable. On the contrary, if as a matter of law it is clear that no relief could be granted under any set
of facts … a claim must be dismissed, without regard to whether it is based on outlandish legal theory…. What Rule 12(b)(6) does
not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations.
Id., 490 U.S. at 326-27, 109 S.Ct. at 1832 (citation omitted). For the limited purpose of ruling on defendant’s motion, the court has
accepted as true the facts alleged by plaintiff in the complaint and will view them in a light most favorable to her.
B. The Fourteenth Amendment
Plaintiff seeks prospective injunctive relief which would require the State of North Carolina to forego exposure to pepper mace as a
part of its mandatory course of training for uniformed prison guards. She seeks such injunctive relief by contending that the policy
mandating exposure to pepper mace violates the Due Process Clause of the fourteenth amendment to the United States Constitution.
Section 1 of the fourteenth amendment provides:
[P]ersons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of
the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, Section 1.
“Procedural due process” and “substantive due process” are distinct. The former guarantees citizens a fair decision-making process
before life, liberty, or property is taken, but provides no protection from arbitrary laws, rules, or policies which are at the heart of the
proceeding. The latter concerns whether the substantive law under which a citizen’s life, liberty, or property is impaired is in harmony
with the United States Constitution. See Nowak & Rotunda, Constitutional Law, Section 10.6(a), at 346 (5th ed. 1995). In this case,
plaintiff attacks both the procedure used to implement the policy and the constitutionality of the policy which requires her to submit
to mace training or relinquish her position as a uniformed prison guard. The court will now consider, seriatim, whether plaintiff has
stated a claim for infringement of her right to procedural due process and substantive due process.
C. Procedural Due Process
In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), a professor at a state university who
was hired for a fixed term of one academic year was informed that he would not be rehired for the next academic year. He was given
“no reason for the decision and no opportunity to challenge it at any sort of hearing.” Id., at 568, 92 S.Ct. at 2704. Not unlike the
present case, Roth brought an action in federal district court challenging “the decision both in substance and procedure.” Id. The
Supreme Court rejected Roth’s procedural due process claim that he had a liberty interest at stake and held, as follows:
Liberty and property are broad and majestic terms. They are among the [g]reat [constitutional] concepts … purposely left to
gather meaning from experience…. Yet, while the Court has eschewed rigid or formalistic limitations on the protection of
procedural due process, it has at the same time observed certain boundaries. For the words liberty and property in the Due
Process Clause of the Fourteenth Amendment must be given some meaning.
Id., at 571-72, 92 S.Ct. at 2706. The Court found that mere termination of employment, without some additional state action, does not
implicate a public employee’s liberty interests under the fourteenth amendment. Further, the Court noted that liberty had not been
defined “with exactness,” but would include freedom from bodily restraint, the right to contract, to engage in the common
occupations of life, to acquire useful knowledge, to marry, to make a home and rear children, to worship, and enjoy privileges
essential to the orderly pursuit of happiness.
Plaintiff does not and cannot allege that she is being compelled to submit to the challenged training. The only way she will ever have
to undergo that training is if she voluntarily consents to exposure as a condition of completing her training as a uniformed prison
guard; thus, the only possible deprivation would be her continued employment in that position, and the court has assumed that she
would not be retained as a uniformed guard if she failed to submit to the required training. In the procedural due process analysis, the
court’s focus is not on the underlying policy — here, pepper mace training — but whether a fair decision-making process is used by
state actors before depriving a plaintiff of a protected interest. As did the plaintiff in Board of Regents of State Colleges v. Roth, supra,
the plaintiff in this case has failed to allege anything more than termination of employment (here, as a uniformed prison guard).
There are no allegations that the termination is coupled with a prohibition on seeking other employment within state government or
even within the Department of Correction or that the termination will reflect anything other than a decision on plaintiff’s part not to
complete a portion of training which the state considered essential, but which plaintiff found to be intolerable. Stated in constitutional
terms, there are no allegations that the termination would in any way impair plaintiff’s ability to enjoy any “privileges essential to the
orderly pursuit of happiness.” Inasmuch as the state has made no charges against plaintiff “that might seriously damage [her]
standing and associations in [her] community,” id., at 573, 92 S.Ct. at 2707, plaintiff has failed to state a claim upon which relief could
be granted under the procedural Due Process Clause of the fourteenth amendment.
D. Substantive Due Process
1. Introduction
In addition to enjoying the right to procedural due process, citizens also enjoy a right to substantive due process. In its simplest
terms, that fourteenth-amendment right guarantees citizens the freedom from being subjected to state or local laws, rules, or policies
which are contrary to the rights afforded them under the United States Constitution. Substantive due process analysis of such laws
may take one of two tracks — “strict scrutiny” or “rational basis.” A state law, rule, or policy will receive strict scrutiny by a court
where it touches upon a fundamental right; where no fundamental right is touched upon, only a “rational basis” need be shown for
the law, rule, or policy to pass constitutional muster.
2. Strict Scrutiny
a. Introduction
A state law, rule, or policy will receive strict scrutiny where it places a burden on a citizen’s fundamental rights or a protected class of
individuals. The fundamental rights of citizens have been identified as
(1) freedom of association;
(2) the right to vote and participate in the electoral process;
(3) interstate travel;
(4) fundamental fairness in the criminal process;
(5) fairness in procedures concerning individual claims against state deprivations of life, liberty, or property; and
(6) the right to privacy (including freedom of choice in matters relating to an individual’s personal life, such as marital
decisions, childbearing, and child rearing.)
When fundamental rights or suspect classification are not at issue, courts review claimed violations of substantive due process under
the “rational basis” standard of scrutiny. McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Kersh v. Bounds, 501
F.2d 585, 588 (4th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). In this case, plaintiff attempts to invoke
the higher standard of strict scrutiny by asserting that the defendant’s policy “shocks the conscience” and “is arbitrary and
capricious.” Plaintiff’s measured use of those terms raises two standards under substantive due process jurisprudence, neither of
which is applicable to the circumstances of this case.
b. Shocks the Conscience
A “shocks-the-conscience” standard finds its origins in a line of cases which holds that individuals in state custody or control have a
right to be free from state-sanctioned, nonconsensual, bodily harm which “shocks the conscience.” Rochin v. California, 342 U.S. 165,
173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952); Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990). That standard has been
used to protect an individual’s “right to be free of stale intrusions into realms of personal privacy and bodily security through means
so brutal, demeaning, and harmful as literally to shock the conscience of a court.” Hall v. Tawney, 621 F.2d 607, 612 (4th Cir.1980).
The “shocks-the-conscience” standard has been used exclusively to support claims by inmates, not uniformed prison guards, and
plaintiff may not invoke that standard, for she, unlike the inmates she supervises, still has the freedom to choose not to be subjected
to the challenged policy regarding pepper mace training. To illustrate the point, a “shocks-the-conscience standard” would come into
play if the Department of Correction required inmates to submit to doses of pepper mace so they could learn how it would feel to be
sprayed by a guard. Unlike a policy directed at inmates who have lost the freedom to choose, the questioned policy is directed at
correctional officers, including plaintiff, who are free to relinquish their employment as prison guards rather than submit to the
required training. While a person may choose to undergo any number of ordeals in order to retain public employment (i.e., a volunteer
soldier submitting to combat training, a Secret Service agent volunteering to sacrifice his or her life to protect the life of a public
official, a police officer being trained in the use of painful holds, or a firefighter voluntarily being exposed to life-threatening
conditions), it is the freedom of choice which prevents such public sector training or work policies from shocking the conscience.
Board of Regents of State Colleges v. Roth, supra, 408 U.S. at 575, 92 S.Ct. at 2708. (“[i]t stretches the concept too far to suggest that a
person is deprived of `liberty’ when he … remains as free as before to seek another [job]”). Public employees have no right to
continued public employment and may be required to comply with an employer’s rules, regardless of the employee’s belief that the
employer’s actions are unconstitutional. See Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968).
The Court of Appeals for the Fourth Circuit has found that even where a policy may cause an employee to terminate his or her public
employment as a result of exercising constitutional rights, the policy “does not directly and substantially interfere” with the right so
as to be constitutionally invalid. Waters v. Gaston Co., 57 F.3d 422, 426 (4th Cir.1995). Plaintiff’s argument that she may not be forced
to relinquish her constitutional right to be free from pain in order to maintain her employment with defendant does not state a claim.
If such were the case, there would be no police officers, firefighters, or prison guards, all of whom routinely are required
[918 F.Supp. 163]
to submit to training and work which involves the endurance of pain. Individuals who voluntarily seek public employment as law enforcement
officers, firefighters, prison guards, and soldiers implicitly consent to the endurance of pain during training: it comes with the territory. Plaintiff is
not being required to be a correctional officer and endure the pain; rather, she is consenting to it voluntarily by retaining her employment.
As is suggested by the appellate court in Rucker v. Hartford Co., 946 F.2d 278 (4th Cir.1991), cert. denied, 502 U.S. 1097, 112 S.Ct. 1175,
117 L.Ed.2d 420 (1992), and in Temkin v. Frederick County Comm’rs, supra, the fourteenth amendment may offer some “residual”
protections in situations where an individual is not within the custody or under the control of the state. Under such residual
protections of substantive due process, a court is only required to determine whether the
[s]tate action is so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally
incapable of avoidance by any predeprivation procedural protections or of adequate rectification by any postdeprivation state
Rucker v. Hartford Co., supra, at 281. Even assuming all the facts pleaded by plaintiff are true, it is beyond possibility that the policy at
issue here is so “arbitrary and irrational” and “unjustified by any circumstance or governmental interest” as to be incapable of
avoidance either through a predeprivation or postdeprivation remedy. Where physical injury is the basis of a claim, the state actor’s
conduct “must amount to a brutal and inhumane abuse of official power literally shocking to the conscience.” Temkin v. Frederick
County Comm’rs, supra, at 720. Plaintiff has not alleged “brutal and inhumane abuse of official power,” only that the training is
“dangerous,” “extremely painful,” and a “deliberate infliction of pain and suffering and unwarranted exposure to serious bodily
injury.” Complaint, at paragraph 17. These allegations, considered in the context of prison employment, fail to “shock the
conscience.” Not only has plaintiff’s bodily security not yet been invaded by the state through application of pepper spray, but the
policy which she alleges will invade her bodily security and therefore infringe upon her liberty interests does not rise to the level of
action which “shocks the conscience.”
c. Arbitrary and Capricious
In alleging that the pepper mace training policy is “arbitrary and capricious,” plaintiff attempts to raise a claim under the line of cases
holding that individuals have a right to be free from state laws or policies which deprive individuals of rights implicit in the concept of
ordered liberty. Brennan v. Stewart, 834 F.2d 1248, 1255-56 (5th Cir. 1988). As to this allegation, the question is whether the policy per
se violates plaintiff’s substantive due process rights. Clearly, the policy at issue is “reasonably related to a legitimate state interest.”
Hall v. Tawney, supra, at 612.
On its face, the policy does not violate any constitutional liberty interests. As Lynn Phillips’s affidavit details, exposure to pepper
spray during training accomplishes several legitimate state interests, including deterring law enforcement officers from using it
unless absolutely necessary, teaching them how to react in the event they are inadvertently sprayed or sprayed by an inmate, and
making them more sensitive to the need to obtain care for inmates who have been sprayed. In addition, it cannot be shown that the
policy is applied in an arbitrary manner, for all uniformed prison guards must comply, except in the case of a legitimate medical
reason. Phillips’s affidavit.
d. Conclusion
Dismissal of a claim of substantive due process is appropriate where a plaintiff “fail[s] to identify the deprivation of any
[918 F.Supp. 164]
right implicit in the concept of ordered liberty….” Dunn v. Town of Emerald Isle, 722 F.Supp. 1309, 1312 (E.D.N.C.1989), aff’d, 918 F.2d 955, 1990 WL
180977 (4th Cir.1990). Although plaintiff, in an attempt to have this court apply strict scrutiny when reviewing the policy, has asserted that the
policy is “arbitrary and capricious” and “shocks the conscience,” it is clear that the terms used by plaintiff have no application. It further appears
that strict scrutiny review is not appropriate and plaintiff’s substantive due process claim must be dismissed because plaintiff has failed to identify
a fundamental right justifying such scrutiny. Id.
3. Rational Basis.
Evaluation of the pepper mace training policy under the “rational basis” test makes its clear that the policy “passes muster under a
rational basis review.” See Waters v. Gaston Co., supra, at 426. The Waters court found that where the county policy did “not
significantly interfere with [a] fundamental right,” it was incumbent upon the court to conduct a “facial review [of] the policy to
determine whether there was a rational basis for its passage.” Id. After considering the rational goals of the policy, the Waters court
stated that it had “no trouble concluding that the policy passes muster under a rational basis review.” Id. Again, the rational goals of
the policy, on its face, are to encourage law enforcement officers to take care when using pepper mace, to discourage the
indiscriminate use of pepper mace on inmates, and to teach officers the importance of prompt remediation of the effects of the spray.
Far from plaintiff’s contentions, this court finds the policy is not only supported by a rational basis, but is a laudable step toward
avoidance of unnecessary and prolonged suffering by inmates and prison guards who are exposed to such deterrent.
III. Conclusion
The court has considered carefully plaintiff’s complaint and brief in opposition to the defendant’s Motion to Dismiss. Whether or not
plaintiff is sincere in her belief that pepper mace training violates protections afforded her under the Due Process Clause of the
fourteenth amendment, review of the relevant case law reveals that she has failed to state a claim cognizable in this court. The policy
is rationally related to the need of the Department of Correction to ensure that guards understand the impact of pepper mace spray on
inmates and themselves and take appropriate steps to avoid its indiscriminate use and remediate its effects. Like most careers in law
enforcement, the job of prison guard carries with it no guarantee that the training or work will be without pain or free from some
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violations of bodily integrity. The fourteenth amendment protects a citizen’s freedom to choose, but cannot be read to protect a citizen
from making a wrong choice. Under plaintiff’s theory, the fourteenth amendment would subject state and locals governments to suit
anytime they offered public employment which involved danger, pain, or personal sacrifice. Such a strained reading of the fourteenth
amendment would effectively prevent governance. In plaintiff’s case, it is up to her, not a federal court, to decide whether the
voluntary relinquishment of her right to bodily integrity and freedom from pain is worth continued employment as a uniformed
prison guard.
As is reflected in a judgment filed simultaneously herewith, plaintiff has failed to state a claim. Her complaint, therefore, will be
dismissed in its entirety.
1. The relevant allegation in plaintiff’s complaint is set out in full, as follows:
Requiring the plaintiff to submit to such a procedure violates the rights of the plaintiff secured for her by the Fourteenth
Amendment to the United States Constitution in that she is being deprived of her liberty, to wit: freedom from bodily harm,
without due process of law. The conduct of the Department of Correction represented by this policy shocks the conscience, is
arbitrary and capricious, and is violative of the Plaintiff’s substantive due process rights. Requiring Plaintiff’s employment to be
conditioned on such an unconstitutional practice makes her governmental job contingent on the sacrifice of her constitutional
rights, and this is prima facie invalid.
Complaint, at paragraph 12. Plaintiff also alleges that the pepper spray training is “dangerous” and “extremely painful.” Complaint, at
17. For the limited purpose of the pending Motion to Dismiss, the court has accepted as true plaintiff’s contentions as to potential pain
and danger.
2. There is no allegation in this case that the policy at issue is targeted to keep a protected class, such as women, from becoming uniformed prison
3. Complaint, at paragraph 12.
4. See also Temkin v. Frederick County Comm’rs, 945 F.2d 716 (4th Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992),
wherein the Court of Appeals for the Fourth Circuit applied the shocks-the-conscience standard to a substantive due process claim brought by an
innocent third party injured as a result of a police chase.
5. While affidavits are seldom appropriate in the context of Rule 12(b)(6), the purpose of Phillips’s affidavit is to list the legitimate state interests
which are furthered by the policy. Even though plaintiff may contend that such policy also furthers illegitimate state interests — which for
purposes of the pending motion the court has assumed plaintiff could show — the state need only show legitimate state interests to pass muster
under plaintiff’s claim that the policy is arbitrary and capricious.

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