UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-6763
FREDDIE DAVID PAIGE,
Plaintiff - Appellant,
v.
JOSEPH HERRING, Fayetteville Police Department; J. DEL PIZZO, Fayetteville Police Department,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-ct-03124-BO)
Submitted: January 13, 2022 Decided: February 4, 2022
Before THACKER and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Freddie David Paige, Appellant Pro Se. Donald Brandon Christian, Monroe, North Carolina; Clay Allen Collier, CROSSLEY MCINTOSH COLLIER HANLEY & EDES PLLC, Wilmington, North Carolina; James Carlton Thornton, CRANFILL SUMNER, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Freddie David Paige filed an amended 42 U.S.C. § 1983 complaint against two
undercover narcotics detectives with the Fayetteville, North Carolina, Police Department.
Paige alleged that Defendants violated his substantive due process rights by providing him
heroin, from which he suffered an overdose, as payment for a drug transaction he facilitated
between Defendants and his source. The district court granted Defendants’ motion for
summary judgment and denied Paige’s, concluding that Defendants had not violated
Paige’s constitutional rights and, even if they had, Defendants are entitled to qualified
immunity. We affirm.
We review a district court’s ruling on cross-motions for summary judgment de novo.
Young v. Equinor USA Onshore Props., Inc., 982 F.3d 201, 205 (4th Cir. 2020). “[W]hen
a district court’s grant of summary judgment disposes of cross-motions for summary
judgment, we consider each motion separately on its own merits, resolving all factual
disputes and any competing, rational inferences in the light most favorable to the party
opposing that motion.” Wingate v. Fulford, 987 F.3d 299, 304 (4th Cir.) (internal quotation
marks omitted), cert. denied, 142 S. Ct. 89 (2021). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if
a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it
might affect the outcome of the suit under the governing law.” Haze v. Harrison, 961 F.3d
654, 658 (4th Cir. 2020) (cleaned up). “To create a genuine issue for trial, the nonmoving
party must rely on more than conclusory allegations, mere speculation, the building of one
2 inference upon another, or the mere existence of a scintilla of evidence.” Humphreys &
Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015)
(internal quotation marks omitted).
“To overcome the qualified immunity defense at the summary judgment stage, the
plaintiff must have shown facts that make out a violation of a constitutional right, and the
right at issue must have been clearly established at the time of the defendant’s alleged
misconduct.” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (internal quotation
marks omitted). “A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he or she is doing violates that right.”
Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir. 2018) (cleaned up). When deciding
“whether a right was clearly established, we typically ask whether, when the defendant
violated the right, there existed either controlling authority—such as a published opinion
of this Court—or a robust consensus of persuasive authority that would have given the
defendants fair warning that their conduct was wrongful.” Turner v. Thomas, 930 F.3d
640, 644 (4th Cir. 2019) (cleaned up). In assessing whether the contours of a particular
right are sufficiently clear, “a case directly on point” is not required, “but existing precedent
must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011).
Paige argues that Defendants violated his substantive due process rights under the
state-created danger doctrine. This “doctrine applies where (1) the state actor directly
created or increased the risk of the harm to the victim and (2) did so directly through
affirmative acts.” Callahan v. N.C. Dep’t of Pub. Safety, 18 F.4th 142, 146 (4th Cir. 2021)
3 (internal quotation marks omitted). Inactions or omissions by the state actor will not
suffice, and an affirmative act in the state-created danger context “is also quite limited.”
Graves v. Lioi, 930 F.3d 307, 319 (4th Cir. 2019); see Turner, 930 F.3d at 645 (“[T]he bar
for what constitutes an affirmative act is high.” (internal quotation marks omitted)). “[I]t
cannot be that the state commits an affirmative act or creates a danger every time it does
anything that makes injury at the hands of a third party more likely. If so, the state would
be liable for every crime committed by the prisoners it released.” Graves, 930 F.3d at 319-
20 (cleaned up). “The concept of affirmative acts should not extend beyond the context of
immediate interactions between the state actor and the plaintiff. A downstream, but-for
connection between the state’s conduct and the alleged harm stretches the affirmative acts
concept too far to support a state-created danger claim.” Callahan, 18 F.4th at 147 (cleaned
up).
Paige also argues that he is entitled to relief because Defendants’ actions shock the
conscience. State officials may be held liable under the Due Process Clause when their
exercise of governmental power shocks the conscience. Dean ex rel. Harkness v.
McKinney, 976 F.3d 407, 413-14 (4th Cir. 2020), cert. denied, 141 S. Ct. 2800 (2021).
“[D]etermining whether conduct is sufficiently egregious to amount to a Fourteenth
Amendment violation is far from an exact science,” and, “[d]epending on the
circumstances, different degrees of fault may rise to the level of conscience-shocking.”
Young v. City of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001). What is clear is that
“liability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process,” and “behavior that would most probably support a substantive
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-6763
FREDDIE DAVID PAIGE,
Plaintiff - Appellant,
v.
JOSEPH HERRING, Fayetteville Police Department; J. DEL PIZZO, Fayetteville Police Department,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:17-ct-03124-BO)
Submitted: January 13, 2022 Decided: February 4, 2022
Before THACKER and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Freddie David Paige, Appellant Pro Se. Donald Brandon Christian, Monroe, North Carolina; Clay Allen Collier, CROSSLEY MCINTOSH COLLIER HANLEY & EDES PLLC, Wilmington, North Carolina; James Carlton Thornton, CRANFILL SUMNER, LLP, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Freddie David Paige filed an amended 42 U.S.C. § 1983 complaint against two
undercover narcotics detectives with the Fayetteville, North Carolina, Police Department.
Paige alleged that Defendants violated his substantive due process rights by providing him
heroin, from which he suffered an overdose, as payment for a drug transaction he facilitated
between Defendants and his source. The district court granted Defendants’ motion for
summary judgment and denied Paige’s, concluding that Defendants had not violated
Paige’s constitutional rights and, even if they had, Defendants are entitled to qualified
immunity. We affirm.
We review a district court’s ruling on cross-motions for summary judgment de novo.
Young v. Equinor USA Onshore Props., Inc., 982 F.3d 201, 205 (4th Cir. 2020). “[W]hen
a district court’s grant of summary judgment disposes of cross-motions for summary
judgment, we consider each motion separately on its own merits, resolving all factual
disputes and any competing, rational inferences in the light most favorable to the party
opposing that motion.” Wingate v. Fulford, 987 F.3d 299, 304 (4th Cir.) (internal quotation
marks omitted), cert. denied, 142 S. Ct. 89 (2021). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if
a reasonable jury could return a verdict for the nonmoving party, and a fact is material if it
might affect the outcome of the suit under the governing law.” Haze v. Harrison, 961 F.3d
654, 658 (4th Cir. 2020) (cleaned up). “To create a genuine issue for trial, the nonmoving
party must rely on more than conclusory allegations, mere speculation, the building of one
2 inference upon another, or the mere existence of a scintilla of evidence.” Humphreys &
Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015)
(internal quotation marks omitted).
“To overcome the qualified immunity defense at the summary judgment stage, the
plaintiff must have shown facts that make out a violation of a constitutional right, and the
right at issue must have been clearly established at the time of the defendant’s alleged
misconduct.” Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (internal quotation
marks omitted). “A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he or she is doing violates that right.”
Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir. 2018) (cleaned up). When deciding
“whether a right was clearly established, we typically ask whether, when the defendant
violated the right, there existed either controlling authority—such as a published opinion
of this Court—or a robust consensus of persuasive authority that would have given the
defendants fair warning that their conduct was wrongful.” Turner v. Thomas, 930 F.3d
640, 644 (4th Cir. 2019) (cleaned up). In assessing whether the contours of a particular
right are sufficiently clear, “a case directly on point” is not required, “but existing precedent
must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011).
Paige argues that Defendants violated his substantive due process rights under the
state-created danger doctrine. This “doctrine applies where (1) the state actor directly
created or increased the risk of the harm to the victim and (2) did so directly through
affirmative acts.” Callahan v. N.C. Dep’t of Pub. Safety, 18 F.4th 142, 146 (4th Cir. 2021)
3 (internal quotation marks omitted). Inactions or omissions by the state actor will not
suffice, and an affirmative act in the state-created danger context “is also quite limited.”
Graves v. Lioi, 930 F.3d 307, 319 (4th Cir. 2019); see Turner, 930 F.3d at 645 (“[T]he bar
for what constitutes an affirmative act is high.” (internal quotation marks omitted)). “[I]t
cannot be that the state commits an affirmative act or creates a danger every time it does
anything that makes injury at the hands of a third party more likely. If so, the state would
be liable for every crime committed by the prisoners it released.” Graves, 930 F.3d at 319-
20 (cleaned up). “The concept of affirmative acts should not extend beyond the context of
immediate interactions between the state actor and the plaintiff. A downstream, but-for
connection between the state’s conduct and the alleged harm stretches the affirmative acts
concept too far to support a state-created danger claim.” Callahan, 18 F.4th at 147 (cleaned
up).
Paige also argues that he is entitled to relief because Defendants’ actions shock the
conscience. State officials may be held liable under the Due Process Clause when their
exercise of governmental power shocks the conscience. Dean ex rel. Harkness v.
McKinney, 976 F.3d 407, 413-14 (4th Cir. 2020), cert. denied, 141 S. Ct. 2800 (2021).
“[D]etermining whether conduct is sufficiently egregious to amount to a Fourteenth
Amendment violation is far from an exact science,” and, “[d]epending on the
circumstances, different degrees of fault may rise to the level of conscience-shocking.”
Young v. City of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001). What is clear is that
“liability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process,” and “behavior that would most probably support a substantive
4 due process claim is conduct intended to injure that is in some way unjustifiable by any
government interest.” Dean, 976 F.3d at 414 (cleaned up). “Closer calls, however, are
presented by conduct that is something more than negligence but less than intentional,”
and “a determination as to which of these standards of culpability—intent to harm or
deliberate indifference—applies requires an exact analysis of context and circumstances
before any abuse of power is condemned as conscience shocking.” Id. (cleaned up).
We decline to consider whether Defendants violated Paige’s substantive due process
rights under the state-created danger doctrine or whether their actions shock the conscience.
After reviewing the record and the relevant case law, we conclude that the district court
correctly determined that, even if there was a constitutional violation in this case,
Defendants are entitled to qualified immunity because they did not violate clearly
established law. See Turner, 930 F.3d at 644.
We affirm the district court’s judgment, grant Paige’s motion to amend his informal
brief, and deny his motion for a video conference. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED