10-1596-cv
 Robischung-Walsh v. Nassau Cnty. Police Dep’t

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
 of April, two thousand eleven.

 Present:
          DENNIS JACOBS,
                      Chief Judge,
          PIERRE N. LEVAL,
          ROBERT A. KATZMANN,
                      Circuit Judges.
 ________________________________________________

 TRACEY ROBISCHUNG-WALSH, as the Executrix
 of the Estate of Dennis T. Walsh,

              Plaintiff-Appellant,

                     v.                                            No. 10-1596-cv

 NASSAU COUNTY POLICE DEPARTMENT, COUNTY
 OF NASSAU, LAWRENCE MULVEY, Police Commissioner,
 JAMES LAWRENCE, Former Police Commissioner,
 individually and in their official capacities,

          Defendants-Appellees.*
 ________________________________________________




        *
            The Clerk of Court is directed to amend the caption as set forth above.
For Plaintiff-Appellant:                  RICK OSTROVE, Leeds Morelli & Brown, P.C., Carle
                                          Place, N.Y.

For Defendants-Appellees:                 JACKIE L. GROSS, Deputy County Attorney (Nazneen
                                          Malik, on the brief), for John Ciampoli, Nassau County
                                          Attorney, Mineola, N.Y.


       Appeal from the United States District Court for the Eastern District of New York (Spatt,

J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Tracey Robischung-Walsh (“plaintiff”), in her capacity as executrix

of the estate of her late husband, Dennis T. Walsh (“Walsh”), appeals from a judgment of the

United States District Court for the Eastern District of New York (Spatt, J.) dismissing her

complaint. Plaintiff brought suit under 42 U.S.C. § 1983 after Walsh, who joined the Nassau

County Police Department (“NCPD”) in 1990 as a police officer and was eventually promoted to

the position of Detective Lieutenant, committed suicide in 2006. Plaintiff avers that Walsh took

his life as a result of undiagnosed cumulative post-traumatic stress disorder (“CPTSD”). She

further alleges that the NCPD and other defendants exhibited deliberate indifference toward

Walsh by failing to train him and other NCPD officers on suicide prevention, suicide risk

assessment, or the effects of CPTSD. We presume the parties’ familiarity with the underlying

facts, procedural history, and issues presented for review.

       “We review de novo the grant of a motion to dismiss for failure to state a claim upon

which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).” Harris v. Mills,

, 71 (2d Cir. 2009). “We consider the legal sufficiency of the complaint, taking its

factual allegations to be true and drawing all reasonable inferences in the plaintiff’s favor.” 

as here, a plaintiff brings a § 1983 claim against a county, “proper analysis

requires us to separate two different issues . . . : (1) whether plaintiff’s harm was caused by a

constitutional violation, and (2) if so, whether the [county] is responsible for that violation.”

Collins v. City of Harker Heights, Tex., 

, 120 (1992). In the opinion below, the

district court focused primarily on plaintiff’s allegations regarding the defendants’ responsibility

for what it assumed was a violation of Walsh’s constitutional rights, and determined that those

allegations were implausible or otherwise lacking. For the following reasons, we affirm on the

basis that plaintiff has failed to state a claim that Walsh’s suicide involved a violation of his

constitutional rights.

        Plaintiff’s complaint asserts that the defendants violated rights guaranteed to Walsh

under the Due Process Clause of the Fourteenth Amendment. In particular, plaintiff relies on the

“substantive component” of the Due Process Clause, which “protects individual liberty against

‘certain government actions regardless of the fairness of the procedures used to implement

them.’” 

(quoting Daniels v. Williams, 

, 331 (1986)). As a general matter,

the Due Process Clause has not been construed as “a guarantee of certain minimal levels of

safety and security.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

, 195

(1989). However, we have recognized that in certain “exceptional circumstances” a state actor

may be under an affirmative constitutional obligation to protect an individual, “either because of

a special relationship with an individual, or because the governmental entity itself has created or

increased the danger to the individual.” Ying Jing Gan v. City of New York, 

, 533

(2d Cir. 1993) (citation omitted).

        We are unpersuaded that plaintiff’s claim involves circumstances of the sort that can

serve as a basis for substantive due process liability. First, we decline to hold that the

                                                  3
relationship between Walsh and the NCPD was a “special relationship” as that term is defined by

our precedents. “Our own opinions have . . . focused on involuntary custody as the linchpin of

any special relationship exception.” Matican v. City of New York, 

, 156 (2d Cir.

2008). Here, “[plaintiff] cannot maintain . . . that the [county] deprived [Walsh] of his liberty

when it made, and he voluntarily accepted, an offer of employment.” 

.

Substantive due process does not support constitutional liability for claims based solely on a

governmental entity’s alleged failure “to provide its employees with a safe working

environment.” 

       Plaintiff’s attempt to fit her claim within the “state-created danger” exception fares no

better. Our cases recognizing this theory of liability involve scenarios where, unlike here, “a

government official takes an affirmative act that creates an opportunity for a third party to harm

a victim (or increases the risk of such harm).” Lombardi v. Whitman, 

, 80 (2d Cir.

2007) (emphasis added); see also Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 

, 429 (2d Cir. 2009) (“The affirmative conduct of a government official may give rise to an

actionable due process violation if it communicates, explicitly or implicitly, official sanction of

private violence.” (emphasis added)). “It is not enough to allege that a government actor failed

to protect an individual from a known danger of bodily harm or failed to warn the individual of

that danger.” 

. Plaintiff’s complaint is devoid of any allegations of

affirmative, risk-creating acts by the defendants beyond the mere facts of Walsh’s continued

employment with and promotions by the NCPD. For the reasons stated above, the relationship

between a government employer and its employee does not give rise to a constitutional

obligation to protect the employee from a known risk of harm.

       Even assuming arguendo that plaintiff sufficiently pleaded a special relationship or state-

                                                 4
created danger, her substantive due process claim is deficient for the independent reason that it

lacks allegations of conscience-shocking conduct. See 

(“To establish a

violation of substantive due process rights, a plaintiff must demonstrate that the state action was

‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’”

(quoting Cnty. of Sacramento v. Lewis, 

, 847 n.8 (1998))). While the alleged

deliberate indifference of state actors may in some circumstances rise to a conscience-shocking

level, this ordinarily is not so when the defendants are “subject to the pull of competing

obligations.” 

. In particular, a substantive due process claim based on

a municipal defendant’s asserted failure to train its employees or warn them of job-related

dangers does not allege conduct so arbitrary that it violates the right to substantive due process.

See 

; see also 

(“Decisions concerning the allocation of

resources to individual programs . . . and to particular aspects of those programs, such as the

training and compensation of employees, involve a host of policy choices that must be made by

locally elected representatives, rather than by federal judges interpreting the basic charter of

Government for the entire country.”).

       Here, plaintiff’s complaint acknowledges that Walsh received training regarding CPTSD

and suicide prevention during his time at the Nassau County Police Academy and that he

underwent a psychological examination upon applying to the NCPD. While plaintiff asserts that

this training was inadequate and that further training would have mitigated the risks of officer

suicide, she does not allege that the defendants recognized the inadequacy and wantonly

withheld adequate advice or training. Her claims do not sustain a substantive due process

violation, as the defendants’ decisions regarding the extent of such training necessarily involved

the balancing of competing concerns and the allocation of limited resources. Although

                                                  5
plaintiff’s wish that the NCPD had done more to prevent Walsh’s suicide is understandable, her

allegations of deficiencies in the department’s training program do not describe government

behavior that is “arbitrary, conscience-shocking, or oppressive in a constitutional sense.”

Kaluczky v. City of White Plains, 

, 211 (2d Cir. 1995).

       For the foregoing reasons, we conclude that plaintiff’s complaint fails to plead a violation

of Walsh’s substantive due process rights, and therefore have no need to address the defendants’

responsibility for the alleged violation. Accordingly, we AFFIRM the district court’s judgment.


                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




                                                 6