MEMORANDUM OPINION AND ORDER

C. LYNWOOD SMITH, JR., District Judge.

This case grew from the death of Bert Eugene Winston, Jr., a 48-year-old, intellectually-challenged, African-American man who could not swim, and who drowned in the municipal swimming pool of the City of Bridgeport, Alabama.1 The action was filed by Winston's sister, Rovena Hardrick, who sues in a representative capacity, as Administratrix of the estate of her deceased brother. This opinion addresses the various defendants' motions for summary judgment.2 Other pending motions are not addressed.3

I. PROCEDURAL HISTORY

Plaintiff commenced this action in the Circuit Court of Jackson County, Alabama. Her complaint contained a single count, seeking damages from the City of Bridgeport for the death of her brother under Alabama Code § 6-5-410 (1975), the State's wrongful death statute.4 The state judge denied the City's motion to dismiss;5 and, following more than a year of discovery, plaintiff filed a "First Amended Complaint" seeking damages under the same state statute from not only the City of Bridgeport, but also Mayor David Hughes, City Councilman Barry Hughes,6 and the municipal pool's head lifeguard, Brittany Mason.7

Significantly, the amended complaint also contained two claims asserted under 42 U.S.C. § 1983. Count Eight alleged that defendants deprived Bert Eugene Winston, Jr., of his Fourteenth Amendment substantive due process right to life "by affirmatively subjecting [him] to an increased danger/risk of harm that was created by Defendants, and subsequently failing to protect him from that harm, resulting in his death."8 Count Nine alleged that defendants deprived plaintiff's brother of his Fourteenth Amendment right to equal protection of the laws because of his race.9 Defendants jointly filed a timely notice removing the case to this court pursuant to 28 U.S.C. §§ 1441 and 1446, based upon federal question jurisdiction of the foregoing claims under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").10

The consolidated brief filed by plaintiff in opposition to defendants' respective motions for summary judgment admitted that there was "insufficient evidence to support a claim of racial discrimination against Defendant Brittany Mason."11 During oral argument on the motions for summary judgment, plaintiff's counsel expanded that admission and conceded that there was not sufficient evidence to support an equal protection claim against any defendant. Accordingly, the claims alleged in Count Nine were withdrawn. The discussion in the remainder of this opinion addresses only the claims asserted in Count Eight. The relevant portions read as follows:

Doc. no. 1-1 (State Court Pleadings), at ECF 159-61 (First Amended Complaint), ¶¶ 65-69.

II. FACTS

Bert Eugene Winston, Jr. ("Winston"), drowned on Saturday, July 12, 2014, while attending a picnic and pool party sponsored by the First Missionary Baptist Church at the City of Bridgeport's municipal swimming pool.12 That facility had been closed during the previous week due to the condition of the water.13 Barry Hughes, the City Councilman charged with supervision of parks and recreational facilities, had recommended to Mayor David Hughes that the pool be closed because the water "was dirty" and contained "a lot of algae."14 Councilman Hughes assigned the duty of treating the pool's water and returning it to an acceptable level of clarity and quality to the head lifeguard, Brittany Mason.15

Even though Mason had no formal training in pool maintenance, she was charged with the responsibility of checking and recording the chemical levels of the pool's water on a daily basis. Another City employee, Lindon Doyle ("Dodie") Coffman, was responsible for adding chemicals to the pool water during evenings,16 and, maintaining the pool's pump and filtration system.17 During the week prior to the church function, Mason deposited a chemical named "Drop Out" in the water for the purpose of breaking up the algae,18 and vacuumed the organisms when they settled to the bottom.19 Even so, there is no record indicating whether she, or anyone else, measured chemical levels during the period that the pool was closed for cleaning the water.20

On the date scheduled for the church's picnic and pool party, Mason asked Councilman Barry Hughes to bring her a spare key to the lock on the pool gate because she had lost her own.21 When Hughes arrived around 11:00 a.m., Mason asked him whether the pool should be reopened, because the water clarity remained so murky that "you could barely see the lines in the shallow end."22 Mason believed the water condition to be "unsafe,"23 because "[y]ou couldn't even stick your hand in [the water] and see it."24 Councilman Hughes apparently entertained independent concerns about the water, because he telephoned Mayor David Hughes to discuss the advisability of reopening the pool.25 The Mayor told Councilman Hughes to use his own judgment because he (the Mayor) could not see the condition of the water.26 Councilman Hughes ultimately decided to reopen the pool for not only the persons attending the First Missionary Baptist Church picnic, but the public generally.27

Winston arrived at the church shortly after 8:00 a.m. on Saturday morning, July 12, 2014, to assist Patricia Brocks in loading supplies for the picnic into the church van.28 He rode with Ms. Brocks to the park and assisted in preparing for the picnic.29 After Councilman Barry Hughes and head lifeguard Brittany Mason unlocked the gate of the fence surrounding the pool, some church members, including Winston, entered.30

The attention of church member Jennifer Thomas was drawn to Winston while he frolicked with some of the children near the rope that marked the end of the shallow part of the pool and the beginning of the deep water: "he was hollering at the kids" and saying "I bet you can't catch me. And he was inching back from them."31 Ms. Thomas described her perception of the condition of the water at that time as "green. It was almost green. It was really dark and cloudy."32 She stated that it was possible to see the bottom in the most shallow, three-foot-deep part of the pool, but the clarity of the water in the deep end "was horrible. There was no way that you could see anything off of the twelve-foot."33

While playing with the children near the rope marking the edge of the deep water, Winston walked backwards and "slipped" under;34 "he didn't come back up."35

A ten-year-old girl identified in this record only as "C.B." ran to a lifeguard and said, "He is drowning," but the lifeguard just looked at her and said "stop lying."36

Jennifer Thomas did not see Winston go under the water, but she had "seen him inching back toward [the rope marking the change in depth], and I turned around, looked back, and I didn't see him any more."37 She did not immediately appreciate that Winston was in any danger, because she did not know that he could not swim.38 However, when in "just a few minutes" she was told by a child that Winston had gone under the water and "didn't come back up,"39 Thomas asked a female lifeguard with blond hair (subsequently identified as Amanda Nicole Duke) to loan her goggles for the purpose of looking for Winston on the bottom of the pool, but Duke refused:40 "she said they weren't allowed to do that. . . . They weren't allowed to let me go in, period, [and] they would look."41

Amanda Duke then walked into the lifeguard shack and asked two male lifeguards, James P. ("J.P.") Cooper and Trey Bundy, to search for Winston because she "couldn't see in the water" and feared that she would not find him if she searched alone.42 Duke said that Cooper and Bundy searched the pool for "[c]lose to an hour maybe."43 Head lifeguard Brittany Mason testified that Bundy and Cooper used goggles to search the pool's bottom for a similar length of time:

Doc. no. 39-1 (Brittany Mason Deposition), at 33-34 (emphasis and ellipses supplied).

At some point during the search, "a few" persons identified by Amanda Duke as Bert Winston's "family members," allegedly told her that "they thought he might have left. And then some family members [who] had left to see if he was at home, actually had come back and told us that he was at home. And that's when we decided to close the pool down [and cease searching for Winston]."44

A handwritten statement given to the Jackson County Sheriff by lifeguard Trey Bundy stated that:

Id. at 32 (alteration and emphasis supplied).

Another handwritten statement given to the Sheriff by lifeguard J.P. Cooper recorded that:

Id. at 30-31 (alterations and emphasis supplied).

The defendants' account of the duration and depth of the lifeguards' search was disputed by church member Jennifer Thomas. She said that the lifeguards "put their little goggles to their face[s] and just put their head[s] in the water — barely in the water — [and they] said nobody was down there. And then they evacuated everybody."45 C.B., the child who initially sounded the alarm about Winston slipping under the water, provided a similar account. She said that one of the male lifeguards "just got some goggles, and, like, got in the twelve-foot [end of the pool], and like sticked [sic] his head like halfway down in the water.. . . [f]or like five seconds."46

Some support for plaintiff's assertion that the search was abbreviated is provided in a statement given to the Jackson County Sheriff by female lifeguard Melissa Estep, who wrote:

Doc. no. 39-1 (Plaintiff's Ex. 7 to Brittany Mason Deposition), at ECF 32, 30 (alterations and emphasis supplied).47

As previously noted, defendants contend that, at some point after a search for Winston began, they were told that he had been located at his residence.48 By that time, Councilman Barry Hughes had returned to the pool to assess the situation, and he and head lifeguard Brittany Mason jointly decided to call off the search and close the pool.49 No one summoned the police or emergency services.50

Winston's sister, plaintiff Rovena Hardrick, last talked with her brother the morning of his death, before he departed for the First Missionary Baptist Church. She told him that she would not drive to the picnic until later in the day, after her husband returned from work.51 When plaintiff and her husband arrived at the park, the pool gate already had been closed and locked by Councilman Hughes and head lifeguard Mason.52 Several children ran up to plaintiff's automobile and said that Winston had gone "under the water," but they overheard some of the lifeguards say that he had "gone home."53 Plaintiff believed that to be out of character for her brother, because he had committed to help with the picnic.54 Even so, she drove to Winston's residence, but he was not there.55 She looked for him at the homes of friends, and asked acquaintances whether they had seen him walking around the neighborhood, but no one had seen him all day.56 When plaintiff could not find her brother, she drove to the police station and asked whether any of the officers had seen him. Again, no one had.57 Only then did plaintiff return to the park and tell church members that Winston was not at home, and that no one had seen him.58

Winston's friend, Arlene Robison, suggested that plaintiff should look for him around "US Stove," speculating that he might have become disoriented if he set off from the pool on foot.59 Plaintiff and Ms. Robison drove around, continuing to look for Winston, but with no success.60

While plaintiff and Ms. Robison continued to search for Winston, a man named Gregory Walker, who was visiting from out of town, on leave from the Army, joined members of his family at the church function around 3:30 p.m. By that time, the pool had been closed and locked by Councilman Hughes and head lifeguard Mason, but the picnic continued.61 Walker's sister, Tanesha, told him that some of the children said that Winston still was in the pool.62 She asked Walker to go into the pool and look for Winston.63 Walker jumped over the fence surrounding the pool and began to search the deep end.64 Jennifer Thomas pointed Walker to the area that Winston last had been seen by the children.65 Walker dove down and searched that area. Within ten to fifteen minutes, he located Winston's body and brought it to the surface.66 Walker's brother-in-law, Antonio Brock, assisted him in removing Winston's body from the pool.67 Walker and his sister, who is a nurse, attempted chest compressions in an effort to resuscitate Winston,68 but it was far too late for such exertions. Winston's lifeless body remained on the pool deck for forty-five to ninety minutes before the Jackson County Coroner arrived around 6:00 p.m.69

The Coroner's Report of Death states that Winston was last seen at approximately 1:30 p.m., and that he was found dead three hours later, at about 4:45 p.m.70 He was formally pronounced dead at 6:10 p.m.,71 and his body transported to the morgue.72

III. DISCUSSION

The claims asserted against the City and individual defendants in Count Eight of plaintiff's amended complaint are based upon 42 U.S.C. § 1983, a statute that authorizes civil suits against state, county, or municipal governmental entities or officials to recover damages for conduct under color of state law that allegedly deprived the plaintiff of rights, privileges, or immunities secured by the United States Constitution or federal law.73 The substantive due process claims asserted by plaintiff under that statute have two elements: plaintiff's decedent died as a result of defendants' violation of a constitutional right; and, the constitutional right was "clearly established."

Hamilton by and through Hamilton v. Cannon, 80 F.3d 1525, 1528 (11th Cir. 1996). The second element overlaps with the individual defendants' claim that they are entitled to qualified immunity: a defense that provides complete protection for state, county, or municipal governmental officials whose conduct violates "no clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).74

As for the City, it cannot be held liable on a theory of respondeat superior: the principle that an employer must answer for the wrongful acts of an employee. See Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, plaintiff must show that any constitutional deprivation resulted from an official custom or policy. Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986); Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985).

Plaintiff's claims against the individual defendants will be examined first.

A. The First Element: a constitutional deprivation

The Due Process Clause of the Fourteenth Amendment, which is the constitutional basis for the claims alleged in Count Eight, provides that "No State shall . . . deprive any person of life, liberty, or property, without due process of law."75 That language requires a state, county, or municipality to follow fair and clearly defined procedures, such as notice and an opportunity to be heard, before depriving "any person of life, liberty, or property." See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and [an] opportunity for [a] hearing appropriate to the nature of the case.") (citation and internal quotation marks omitted, alterations supplied).76

However, plaintiff does not assert a deprivation of Bert Winston's procedural due process rights. Instead, she relies upon the so-called "substantive component" of the Due Process Clause, which protects an individual's life, liberty, or property from "`certain government actions regardless of the fairness of the procedures used to implement them.'" Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).77

The substantive due process rights of persons who are not in custody78 are violated only when state and local governmental officials cause harm by engaging in conduct that can properly be characterized as arbitrary or conscience shocking in a constitutional sense. County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998); Collins, 503 U.S. at 128; Neal v. Fulton County Board of Education, 229 F.3d 1069, 1074 (11th Cir. 2000); White v. Lemacks, 183 F.3d 1253, 1259 (11th Cir. 1999).

The Supreme Court has been careful to note, however, that a plaintiff's requirement to demonstrate that harmful conduct was arbitrary or conscience-shocking in a constitutional sense is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976).79 Instead, when injurious conduct was "merely negligent, `no procedure for compensation is constitutionally required.'" Daniels, 474 U.S. at 333 (quoting Parratt v. Taylor, 451 U.S. 527, 548 (1981)).

Thus, the first element of a substantive due process claim "is to be narrowly interpreted and applied." White, 183 F.3d at 1259 (quoting Collins, 503 U.S. at 128). "To rise to the conscience-shocking level, conduct most likely must be `intended to injure in some way unjustifiable by any government interest.'" Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009) (quoting Lewis, 523 U.S. at 849).

Neither the allegations of Count Eight, nor the facts outlined in Part II of this opinion, even when those facts are construed most strongly in favor of plaintiff, demonstrate conduct that can properly be characterized as arbitrary or conscience shocking in a constitutional sense.80 The evidence of negligence is overwhelming, but none of the individual defendants' acts or omissions shock the conscience, or show an intent to injure Bert Winston.

B. The Second Element: the constitutional right was "clearly established"

Even assuming that plaintiff could satisfy the first element of a substantive due process claim, she cannot point to binding precedent establishing that the constitutional rights allegedly violated by defendants were "clearly established" on the date of Bert Winston's death. Instead, the contrary is true. The Eleventh Circuit has held that there is no constitutional obligation to provide protective services for persons who are not in custody.81 Bradberry v. Pinellas County, 789 F.2d 1513, 1516 (11th Cir. 1986) (holding that a substantive due process claim did not lie against a county for failing to provide adequately trained lifeguards). See also Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir. 1983) (holding that there is no general duty to rescue a stranger in distress, even if the rescue can easily be accomplished, and that a negligent or grossly negligent rescue attempt by a state employee is not the equivalent of a deprivation of right to life without due process of law). Cf., e.g., DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) (holding that public officials have no constitutional duty to rescue or protect individuals who are not in custody). During oral argument, plaintiff attempted to distinguish Bradberry, arguing that, in that case, the decedent put himself at danger by swimming in an unauthorized area. That argument is unavailing because Winston, who presumably knew that he could not swim, nevertheless entered the cloudy pool. As such, it could be said that he put himself in danger much as did the decedent in Bradberry.

Further, as the Eleventh Circuit made abundantly clear in Hamilton, even rescue attempts thwarted by a government official are insufficient to support a section 1983 claim for deprivation of substantive due process. 80 F.3d at 1532 ("It would take much creativity and imagination to glean from the factually distinguishable cases upon which the plaintiffs rely a clearly established rule of law that an unsuccessful, negligent, or reckless rescue attempt, or interference with a bystander's rescue attempt, amounts to a constitutional violation. We decline to exercise such creativity and imagination, because the qualified immunity doctrine prohibits it."). The court therefore finds that there is no "clearly established law" that the lifeguards' inadequate rescue attempts alleged by plaintiff were unconstitutional.

C. "Qualified Immunity"

The conclusion that the constitutional rights claimed by plaintiff were not clearly established is just another way of saying that plaintiff failed to overcome the qualified immunity defense interposed by the individual defendants.

Hamilton, 80 F.3d at 1528. None of the acts of the individual defendants violated "clearly established law," even if plaintiff had established a constitutional deprivation. Each individual defendant is entitled to qualified immunity, and their motions for summary judgment based upon plaintiff's remaining claim under 42 U.S.C. § 1983 are due to be granted.

D. Claims Against the City of Bridgeport, Alabama

Turning to plaintiff's claims against the City of Bridgeport, as distinguished from those of the individual defendants discussed above, the Supreme Court has held that, when the language of section 1983 is read against the background of its legislative history, it

Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). In other words, a municipality may be held liable only if plaintiff establishes that her decedent "suffered a constitutional deprivation and that the deprivation resulted from an official custom or policy." Bradberry, 789 F.2d at 1515 (citing Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985)) (emphasis supplied). The Eleventh Circuit's opinion in Bradberry also observed that:

789 F.2d at 1517 (alteration supplied). Here, as in Bradberry and Hamilton, no constitutional deprivation has been established. Thus, there is no basis upon which the City of Bridgeport can be held liable.

Even assuming that plaintiff had shown a violation of Winston's constitutional rights, she has produced no evidence that the deprivation was the result of an official custom or policy of the City. One incident is not sufficient to impose liability against a municipality.

Craig v. Floyd County, 643 F.3d 1306, 1310-1311 (11th Cir. 2011).

Moreover, "[a] single incident of a constitutional violation is insufficient to prove a policy or custom even when the incident involves several employees of the municipality." Id. at 1311 (alteration supplied). Accordingly, the City also is entitled to summary judgment on the claim for deprivation of Winston's substantive due process rights asserted by plaintiff under 42 U.S.C. § 1983.

E. Supplemental State Law Claims

In cases such as this one, in which the District Court's jurisdiction is based solely upon a federal question, the court has discretion to entertain state claims that are supplemental to the federal claim. See 28 U.S.C. § 1367(a).82 Even so, the district court may decline to exercise supplemental jurisdiction when:

28 U.S.C. § 1367(c). The Supreme Court added a gloss to the foregoing statutory language in Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988), when observing that

Id. at 349-50 (emphasis supplied) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966)). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon, 484 U.S. at 350 n.7 (alteration supplied); see also L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984) (stating that "if the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of state claims").

Here, plaintiff's federal claims have been eliminated before trial, and the state law claims raise complex issues of state law — i.e., whether Alabama's so-called "recreational use" immunity applies,83 and whether the individual defendants are entitled to "state-actor" immunity84 — "something the courts of Alabama are in the best position to undertake and, for reasons of federalism, should undertake in this sensitive area." Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000) (emphasis supplied).85 Moreover, plaintiff originally filed this action in state court on October 13, 2014,86 and did not amend her complaint to include federal claims until July 11, 2016,87 more than a year after the state court judge denied defendants' motion to dismiss.88 Thus, the state law claims predominate in this case. This court finds that the balance of factors weigh in favor of declining supplemental jurisdiction, and exercises its discretion to remand plaintiff's state law claims.

V. CONCLUSIONS AND ORDERS

In accordance with the foregoing discussion, it is ORDERED, ADJUDGED, and DECREED that defendants' motions for summary judgment be, and the same hereby are, GRANTED with respect to the federal claims asserted by plaintiff under 42 U.S.C. § 1983, and that those claims be, and the same hereby are, DISMISSED with prejudice. Plaintiff's state law claims for negligence against the City of Bridgeport, and for negligence, recklessness, and/or wantonness against Bridgeport Mayor David Hughes, Bridgeport Councilman Barry Hughes, and the head lifeguard of Bridgeport's municipal swimming pool, Brittany Mason, are REMANDED to the Circuit Court of Jackson County, Alabama, from which this action was removed.

Plaintiff's motion to strike the testimony of Dr. Jack Kalin and Steve Scheuer,89 and defendant Barry Hughes's motion to preclude the testimony of Dr. Roger Rinn and Dr. Brian Frist,90 are each DENIED as moot. Costs are taxed to the party who or which incurred them. The Clerk is directed to close this file.

DONE and ORDERED.