[PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                         ________________________
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                No. 98-9513                     08/10/99
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                      D.C. Docket No. 1:98-cv-2063-CAM

PHYLLIS WHITE, acting as Administrator for the Estate of
Jean Danison, WILLIAM ROSTAD,
acting as Administrator for the Estate of
Jean Danison,
                                               Plaintiffs-Appellants,

                                     versus


BILL LEMACKS, individually and in his official
capacity as former Sheriff of Clayton County, Georgia,
 STANLEY TUGGLE, individually and in
his official capacities as Sheriff and Deputy Sheriff of
Clayton County, Georgia, CLAYTON COUNTY, GEORGIA,
                                                         Defendants-Appellees.

                        __________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________
                              (August 10, 1999)
Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*,
Senior District Judge.

CARNES, Circuit Judge:

       Plaintiffs William Rostad, acting as administrator for the estate of Jean

Danison, and Phyllis White appeal the district court’s dismissal of their 42 U.S.C.

§ 1983 complaint against the defendants, who are Clayton County Sheriff Billy

Lemacks, Deputy Sheriff Stanley Tuggle, and Clayton County, Georgia. The

district court dismissed the complaint for failure to state a claim upon which relief

may be granted. For the reasons set forth below, we affirm the district court’s

judgment.

                                   I. BACKGROUND

                                        A. FACTS

       According to the amended complaint, White and Danison were nurses in the

employ of Prison Health Services, Inc., which was under contract to provide

medical services to the inmate population at the Clayton County Jail. As a

condition of their job, and while performing their nursing duties at the jail, they

were required to be in close contact with inmates and their freedom of movement

and ability to flee or otherwise protect themselves were limited. Although they had


       *
       The Honorable William M. Hoeveler, Senior United States District Judge for the
Southern District of Florida, sitting by designation.

                                             2
received assurances from agents of the defendants that adequate security measures

would be in place to protect them from injury, in fact, inadequate steps were taken

to protect them.

       On July 23, 1996, while carrying out their nursing duties in the jail

infirmary, White and Danison were attacked and brutally beaten by an inmate who

was being held on aggravated assault charges. During the attack, White’s head

was slammed repeatedly against the floor while the inmate threatened to kill her.

She was physically beaten about the head and body. Danison, too, was physically

beaten by the inmate. At the time of the attack, one deputy sheriff had been

assigned for White and Danison’s protection, but that deputy was easily subdued.

The attack continued until additional law enforcement personnel responded and the

inmate was restrained.

                          B. PROCEDURAL HISTORY

      In their initial complaint, plaintiffs brought claims against Sheriff Lemacks

and Deputy Sheriff Tuggle in their individual and official capacities, and against

Clayton County, Georgia, for substantive due process violations under both the

Fifth and Fourteenth Amendments to the United States Constitution. The complaint

also alleged violations of Georgia law and sought punitive damages.

      Defendants responded with a motion to dismiss for failure to state a claim


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upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6).

Their motion argued that the defendants did not owe plaintiffs a duty to protect

them from a third party and did not have a constitutional obligation to provide a

safe workplace. It also asserted that all of the defendants had qualified immunity,

sovereign immunity, or official immunity, and that the request for punitive

damages should be dismissed. Plaintiffs filed a motion to amend, attaching the

proposed amended complaint. The amended complaint alleged additional facts,

and it dropped the Fifth Amendment substantive due process claims and the

Georgia law claims. The district court granted the plaintiffs’ motion to amend the

complaint, but also granted the defendants’ motion to dismiss the remaining claims

for failure to state a claim. The plaintiffs appeal the dismissal of their Fourteenth

Amendment substantive due process claims.

                                  II. DISCUSSION

      We review de novo the district court’s dismissal of a complaint for failure to

state a claim upon which relief could be granted. See Republic of Panama v. BCCI

Holdings (Luxembourg) S.A., 

, 948 (11th Cir. 1997). When

considering a Rule 12(b)(6) motion to dismiss, a court must accept the allegations

in the complaint as true, construing them in the light most favorable to the

plaintiffs. See Roberts v. Florida Power & Light Co., 

, 1307 (11th


                                           4
Cir. 1998), cert. denied, 

(1999). We have done that in setting out

the facts, above. A Rule 12(b)(6) motion should be granted only if it appears

beyond doubt that the plaintiffs can prove no set of facts in support of their

allegations which would entitle them to relief. See 

bound to follow prior panel decisions, except where they have been

overruled either by an en banc decision of this Court or a decision of the Supreme

Court. See, e.g., United States v. Steele, 

, 1317-18 (11th Cir. 1998)

(en banc); United States v. Hogan, 

, 1369 (11th Cir. 1993). This case

involves the second part of that exception.

      In Cornelius v. Town of Highland Lake, 

(11th Cir. 1989), we

said that state and local government entities could be held liable for substantive

due process violations for their failure to protect victims from harm caused by third

parties where the state had a “special relationship” with the victim, or where the

state, through its affirmative acts, put the victim in “special danger” of harm. Our

holding in Cornelius is best described against the specific facts of that case.

Plaintiff Harriet Cornelius was working at the Highland Lake town hall as the

Town Clerk when she was abducted at knife point by two prison inmates and

forced to accompany them for three days, during which time they terrorized her

with threats of physical violence. The inmates were in the vicinity of town hall


                                           5
because the Town of Highland Lake had requested the Alabama Department of

Corrections to provide inmate work squads to the town for maintenance and public

works purposes. Despite the Department’s policy that only nonviolent, “minimum

custody” property offenders could be assigned to the work squads, one of the

attackers approved for the Highland Lake assignment was serving a long sentence

for armed robbery and had a history of violent crime. The tools provided to the

inmates for their work included axes, picks, machetes, knives, and saws. An

unarmed town employee supervised the inmates during their work, see 

, but the measures employed to protect Cornelius and others

who worked at the town hall were clearly inadequate to ensure their safety.

      Cornelius brought a suit under § 1983 against the Town of Highland Lake,

its Mayor, a member of the City Council, and officials of the Department of

Corrections, alleging a violation of her substantive due process rights. She claimed

that the inmates were able to abduct her only because of the officials’ gross

negligence and deliberate indifference to her rights. See 

The district

court granted summary judgment for the defendants, but this Court reversed.

Surveying prior cases, we concluded that government officials could be held liable

under a substantive due process theory for injuries caused by third parties if there

was a “special relationship” between the government and the victim, or if the


                                          6
government created a “special danger” to the victim that resulted in her injuries.

See 

(citing Wright v. City of Ozark, 

(11th Cir. 1983)

for the special relationship doctrine, and Jones v. Phyfer, 

(11th Cir.

1985) for the special danger doctrine). We concluded in Cornelius that there were

genuine issues of material fact, both as to whether a special relationship existed

between Cornelius and the town officials and as to whether she faced a special

danger from the work squad inmates, see 

which is to say that if she

could prove the facts asserted, Cornelius would establish that her substantive due

process rights had been violated by the government agencies.

      In the special relationship analysis, we noted that “if Mrs. Cornelius wished

to continue serving as the town clerk, she had to work in the environment created

by the town officials; one that included routine exposure to prison inmates around

the town hall.” 

We viewed the employment relationship between

Cornelius and the town as a special relationship giving rise to a substantive due

process duty on the part of the state to protect her from harm.

      Under the special danger portion of the analysis, we observed “that the town

and prison officials affirmatively acted together in bringing the inmates into the

community of Highland Lake via the work squad program.” 

Moreover,

there was evidence indicating that: (1) the town officials assigned to supervise the


                                          7
prisoners had no training in handling prisoners; (2) the defendants allowed the

prisoners access to tools and weapons; and (3) the inmates were often unsupervised

and free to roam. See 

That was enough, we thought, to implicate

substantive due process under the “special danger” analysis.

        Likewise, in this case, working around inmates was a necessary part of the

plaintiffs’ job,1 and they have alleged that these governmental defendants failed to

take adequate measures to protect them from the inmates and were deliberately

indifferent to their safety. Accordingly, if Cornelius is still good law, these

plaintiffs probably have pleaded a valid substantive due process claim. But

Cornelius is not the last word on the subject.

       Less than three years after our Cornelius decision, the Supreme Court in

Collins v. City of Harker Heights, 

, 127, 

, 1069

(1992), unanimously rejected as “unprecedented” a claim that a government

employer had a federal constitutional obligation to provide its employees (as

distinguished from individuals such as prisoners whom it had deprived of their



       1
         Strictly speaking, the plaintiffs were not employees of the County, but were employees
of a corporation under contract with the county to provide nursing services to the jail.
Nevertheless, they were required as a condition of their employment to work in the jail
infirmary, and the parties have treated this situation as equivalent to the plaintiffs having an
employment relationship with the County itself. Because doing so does not affect the outcome,
and, if anything, favors the plaintiffs who lose this appeal anyway, we will treat these plaintiffs
as if they had been employed directly by the County.

                                                 8
liberty) with certain minimal levels of safety and security in the workplace. In that

case, an employee of the City of Harker Heights sanitation department died of

asphyxia after entering a manhole to unstop a sewer line. His widow brought a §

1983 action alleging that under the Fourteenth Amendment, her husband “had a

constitutional right to be free from unreasonable risks of harm to his body, mind

and emotions and a constitutional right to be protected from the city of Harker

Heights’ custom and policy of deliberate indifference toward the safety of its

employees.” 

, 112 S. Ct. at 1064. Her complaint stated

that the city had violated that constitutional right by “following a custom and

policy of not training its employees about the dangers of working in sewer lines

and manholes, not providing safety equipment at jobsites, and not providing safety

warnings.” 

Court read Collins’ claim as advancing two theories. First,

that “the Federal Constitution imposes a duty on the city to provide its employees

with minimal levels of safety and security in the workplace[.]” 

112 S.

Ct. at 1069. Second, that “the city’s ‘deliberate indifference’ to [her husband’s]

safety was arbitrary government action that must ‘shock the conscience’ of federal

judges.” 

those two theories, the Court emphasized that consensual


                                          9
employment relationships are different from custodial relationships, which arise

from incarceration and other involuntary confinement. It indicated that where non-

custodial relationships are involved, the government can be held liable under the

substantive due process clause only where an official’s act or omission is

“arbitrary[] or conscience shocking,” 

112 S. Ct. at 1070, an indication

that was confirmed in County of Sacramento v. Lewis, 

, __, 

, 1717 (1998). The Collins Court held that the city’s alleged failure to train or

warn its employees about known risks was not arbitrary or conscience shocking in

the constitutional 

, 

. The Court explained

its reasoning as follows:

      Our refusal to characterize the city’s alleged omission in this case as
      arbitrary in a constitutional sense rests on the presumption that the
      administration of government programs is based on a rational
      decisionmaking process that takes account of competing social, political,
      and economic forces. Decisions concerning the allocation of resources
      to individual programs, such as sewer maintenance, 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. The Due Process
      Clause is not a guarantee against incorrect or ill-advised personnel
      decisions. Nor does it guarantee municipal employees a workplace that
      is free of unreasonable risks of harm.

and citations omitted).

      After Collins, it appears the only relationships that automatically give rise to


                                          10
a governmental duty to protect individuals from harm by third parties under the

substantive due process clause are custodial relationships, such as those which

arise from the incarceration of prisoners or other forms of involuntary confinement

through which the government deprives individuals of their liberty and thus of

their ability to take care of themselves. Collins makes it clear that the fact a

government employee would risk losing her job if she did not submit to unsafe job

conditions does not convert a voluntary employment relationship into a custodial

relationship, and therefore does not entitle the employee to constitutional

protection from workplace hazards, one of which can be harm caused by third

parties. As the Court put it, the Due Process Clause does not guarantee government

employees “a workplace that is free of unreasonable risks of harm.” 

, 112 S. Ct. at 1070.

       Thus, Collins directly conflicts with and overrules the part of Cornelius

holding that a government employment relationship, in and of itself, is a “special

relationship” giving rise to a constitutional duty to protect individuals from harm

by third parties. As a result, the part of Cornelius adopting, or perpetuating, a

“special relationship” doctrine that guarantees government employees

constitutional protection from unreasonable risks of harm in the workplace is no

longer good law.


                                          11
      That is not the only part of Cornelius felled by Collins. The “special danger”

doctrine employed in Cornelius has been supplanted as well. Under Collins,

government officials violate the substantive due process rights of a person not in

custody only by conduct “that can properly be characterized as arbitrary, or

conscience shocking, in a constitutional sense.” 

, 112 S.

Ct. at 1070. See also Lewis, 523 U.S. at __, 118 S. Ct. at 1717 (citing Collins).

That standard is somewhat amorphous, but the Collins opinion does provide some

guidance for applying it.

      The opinion reminds us, for example, that the Supreme Court has been

“reluctant to expand the concept of substantive due process,” and that judicial self-

restraint requires courts to exercise the utmost care in this area. See 

, 112 S. Ct. at 1068. More specifically, we are told in the Collins

opinion that when governmental action or inaction reflects policy decisions about

resource allocation (as is often the case), those decisions are better made “by

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

charter of Government for the entire country.” 

112 S. Ct. at 1070. In

other words, when someone not in custody is harmed because not enough

resources were devoted to their safety and protection, that harm will seldom, if

ever, be cognizable under the Due Process Clause. Finally, we have the reasoning


                                          12
and holding in Collins that the city’s breach of its duty to provide a safe work

environment is not arbitrary or conscience -shocking in a constitutional sense, but

instead is “analogous to a fairly typical state-law tort claim.” Id. at 

.

      In determining whether the conduct alleged in Cornelius or in this case was

“arbitrary or conscience shocking” under Collins, it is important to note that none

of the plaintiffs in Collins, Cornelius, or this case alleged that the state intended to

harm them or their relatives, but only that the state had been, at most, deliberately

indifferent to their safety. Although Lewis leaves open the possibility that

deliberate indifference on the part of the state will “shock the conscience” in some

circumstances, see 523 U.S. at __, 118 S. Ct. at 1718-20, it is clear after Collins

that such indifference in the context of routine decisions about employee or

workplace safety cannot carry a plaintiff’s case across that high threshold.

       As it was in Collins, so it was in Cornelius, and so it is in this case. The

decisions to be made by government and its officials were materially identical in

all three cases. In Cornelius, the question was whether to provide additional

supervision or other protection to employees when prison inmates are working

around the job site; in Collins, the question was whether to provide better training

and other safeguards to city employees working in hazardous conditions; and, in


                                           13
this case, the question was whether to provide more guards or other safeguards for

the protection of nurses working in the jail infirmary. All three questions involved

resource-allocation choices better resolved by locally elected representatives than

by federal judges. And although all three claims have been dressed up in

substantive due process clothing, the naked truth is that they are actually

“analogous to [] fairly typical state-law tort claim[s]” that the government or its

agents “breached its duty of care . . . by failing to provide a safe work

environment.” Collins, 503 U.S. at 

. All three cases should

have the same result, and the Supreme Court in Collins has dictated what that

result must be.

      To summarize, the “special relationship” and “special danger” doctrines

applied in our decision in Cornelius are no longer good law, having been

superseded by the standard employed by the Supreme Court in Collins. Under

Collins, state and local government officials violate the substantive due process

rights of individuals not in custody only when those officials cause harm by

engaging in conduct that is “arbitrary, or conscience shocking, in a constitutional

sense,” and that standard is to be narrowly interpreted and applied. While

deliberate indifference to the safety of government employees in the workplace

may constitute a tort under state law, it does not rise to the level of a substantive


                                           14
due process violation under the federal Constitution.

       One last item of business remains. In the seven years since Collins, we

have questioned at least five times whether Cornelius retains any viability after

Collins. See Mitchell v. Duval County Sch. Bd., 

, 838-39 & n.3 (11th

Cir. 1997) (“[T]here is some question whether Cornelius’s special danger theory of

liability remains good law” because “Cornelius may not have survived [Collins].”);

Hamilton v. Cannon, 

, 1531 n.6 (11th Cir. 1996) (“Cornelius’ viability

is questionable in light of the Supreme Court’s subsequent decision in [Collins].”);

Lovins v. Lee, 

, 1211 (11th Cir. 1995) (“[T]here is considerable doubt

about whether [Cornelius] survives the Supreme Court’s subsequent Collins

decision.”); Wooten v. Campbell, 

, 700 n.4 (11th Cir. 1995) (“There is

some question whether this court’s holding in Cornelius survive[s] the Supreme

Court’s decision in [Collins].”); Wright v. Lovin, 

, 541 n.1 (11th Cir.

1994) (“[T]here is some doubt whether our holding in Cornelius has survived the

Supreme Court’s recent holding in [Collins].”). In the face of the obvious, it seems

we have never quite been able to say goodbye to Cornelius, always avoiding the

question of whether it has actually left the realm of living precedent in the wake of

Collins. We avoided the question in each of the cited cases by factually

distinguishing Cornelius in one way or another, and concluding that, even if


                                         15
Cornelius were still good law, the result in the case would be the same, i.e.,

judgment against the plaintiff.

      Enough is enough. Like a favorite uncle who has passed away in the parlor,

Cornelius needs to be interred. We do so now. Recognizing that it was dealt a

fatal blow by Collins, we pronounce Cornelius dead and buried. The law on

substantive due process when a citizen who is not in custody claims that a

governmental unit, agency, or official has caused her harm is supplied by the

Collins decision, which occupies the field to the exclusion of anything we said

about such cases in Cornelius. See also Lewis, 523 U.S. at __, 118 S. Ct. at 1717.

                                  III. CONCLUSION

      The district court was correct in granting the defendants’ motion to dismiss

for failure to state a claim, because the plaintiffs failed to allege a violation of

substantive due process.

      AFFIRMED.




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