Henderson v. Gunther

931 P.2d 1150, 1997 Colo. LEXIS 66, 1997 WL 9059

• Court: Supreme Court of Colorado
• Decided: January 13, 1997
• Docket: 95SC543
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Henderson v. Romer, 910 P.2d 48 (Colo.App.1995), affirming the trial court’s order dismissing Petitioner Mary L. Henderson’s 42 U.S.C. § 1983 (1994) claims against Frank Gunther, William Price, and Captain Ron Wager. We conclude that Henderson has failed to state a cognizable § 1983 claim. Therefore, we affirm the court of appeals.

I.

Because the case was resolved on a motion to dismiss, we must view the allegations in Henderson’s amended complaint in the light most favorable to her case. Dunlap v. Colorado Springs Cablevision, 829 P.2d 1286, 1291 (Colo.1992). In 1992, Henderson was employed as a housing technician at the Arkansas Valley Correctional Facility (the Facility) in Crowley County, Colorado. Pursuant to official policy, inmates were allowed to visit Henderson’s office from 6:20 to 6:30 a.m. each morning to obtain aspirin and other personal items. Henderson was alone in her office during these visits and was prohibited from carrying a weapon.

On February 28, 1992, at approximately 6:30 a.m., William Sojka, an inmate, attacked Henderson in her office. Sojka took Henderson hostage with the broken shank of a mirror and locked her in an office. For approximately five and a half hours, Sojka beat Henderson, cut her on the neck, face and hands, and used an electrical cord to shock her repeatedly.

Wager, Henderson’s supervisor at the Facility, and Price, superintendent of the Facility, informed the media of the hostage situation before notifying Henderson’s family members. Henderson’s husband, Randy Henderson, and her three children learned of the situation from news reports.

On May 21, 1993, Henderson, Randy, and the children (collectively, the Plaintiffs) filed a complaint against Roy Romer, governor of the State of Colorado, individually and in his official capacity; Aristedes Zavaras, director of the Colorado Department of Corrections, in his official capacity; Price, individually and in his official capacity; Wager, individually and in his official capacity; the State of Colorado; and the Department of Corrections (collectively, the Original Defendants).

In the complaint, Henderson alleged she was attacked and taken hostage as part of a concerted escape attempt by inmates at the Facility. Henderson further alleged that she had provided Wager with evidence of the planned escape at least a week before the attack, and that in compliance with official policy, she had filed a confirmatory memorandum. That memorandum was allegedly forwarded to Wager and Price.¹ Henderson also alleged that Wager and Price knew that Sojka had a P-5 psychological rating,² and therefore presented an unreasonable danger for the Facility and the housing unit in which Henderson worked.

Henderson further alleged that approximately four days prior to the attack, upon inquiry, Wager told her he had taken no action in response to the report of the planned escape. Henderson also learned that the day prior to the attack, an employee at the Facility had reported to Wager that an inmate had warned that employee not to come to work the following day. Despite the warnings of an impending escape, the Original Defendants took no action and Henderson was required to perform her job on the day of the attack without any additional protection.

The original complaint stated five claims for relief. The first three claims were brought under state tort law on behalf of Randy and the children. The fourth and fifth claims, brought on behalf of Henderson and her family members, respectively, sought damages pursuant to § 1983 for the willful, wanton, and reckless deprivation, under color of state law, of constitutional rights. In response to a C.R.C.P. 12(b)(5) motion filed on behalf of the Original Defendants, the trial court dismissed the state tort law claims, but permitted Henderson and her family leave to amend the complaint to specify the elements they would rely upon to establish jurisdiction under § 1983.

On September 9, 1993, the Plaintiffs filed an amended complaint asserting three § 1983 claims against Romer, Gunther,³ Price, and Wager individually (collectively, the Amended Complaint Defendants).⁴ In the first claim, Henderson asserted that Romer, Gunther, and Price acted with reckless disregard and deliberate indifference as to the effect their budgetary decisions and allocations of resources would have on Henderson’s physical safety. In addition, Henderson alleged in the first claim that through their actions and omissions under the color of law,⁵ the Amended Complaint Defendants deprived Henderson of her constitutional right to be free from injury and her right not to be placed in a situation of known danger through their wilful, wanton, reckless, intentional, and deliberately indifferent behavior.

In the second claim, Randy and the children alleged that the Amended Complaint Defendants’ actions and omissions deprived them of their constitutional right to be free from injury by subjecting them to the physical and emotional trauma resulting from an attack upon their wife and mother, respectively. In the third claim, Randy and the children asserted that Gunther and Price deprived them of their constitutional right to be free from injury by informing the news media that Henderson was being held hostage before informing them.

The Amended Complaint Defendants filed a motion to dismiss for failure to state a claim pursuant to C.R.C.P. 12(b)(5). The trial court granted the motion, holding that there was no “allegation that [Henderson] was held in the correctional facility against her will, was subjected to involuntary servitude, was denied due process, or deprived of any other constitutional right when her supervisor failed to act to protect her after being informed of the danger.” The Plaintiffs appealed both the trial court order dismissing the original complaint and the order dismissing the amended complaint.⁶ The court of appeals affirmed both orders in Henderson, 910 P.2d at 55.

After the Plaintiffs’ petition for rehearing was denied, Henderson alone petitioned this court for certiorari asking that we review the court of appeals decision only with respect to her § 1988 claim against Gunther, Price, and Wager (collectively, the Facility Defendants) in their individual capacities.⁷ We granted certiorari to decide the following issue: ‘Whether the court of appeals erroneously affirmed the trial court’s dismissal of Henderson’s claims pursuant to 42 U.S.C. § 1983, for injuries and damages arising from a denial of substantive due process.”

II.

Because Congress was concerned that state officials were depriving citizens of their federal constitutional rights, it enacted § 1 of the Civil Rights Act of 1871, currently codified at 42 U.S.C. § 1983 (1994). Section 1983 is an enforcement mechanism for the provisions of the Fourteenth Amendment to the Constitution. Ngiraingas v. Sanchez, 495 U.S. 182, 187, 110 S.Ct. 1737, 1740-41, 109 L.Ed.2d 163 (1990). Section 1983 provides in relevant part: “Every person who, [under color of law], subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....” 42 U.S.C. § 1983 (1994).

Hence, in order to prevail under § 1983, a plaintiff must show that the defendants, under color of state law, deprived the plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981), overruled, on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986). In this ease, Henderson claims that the Facility Defendants violated her rights to substantive due process under the Fifth and Fourteenth Amendments⁸ by failing to protect her from Sojka’s attack.

The constitutional guarantee of due process does not convert all common law duties owed by government actors into constitutional torts. See Daniels, 474 U.S. at 335, 106 S.Ct. at 667. Rather, this guarantee has been applied only to “deliberate decisions of government officials to deprive a person of life, liberty or property.” Id. at 331, 106 S.Ct. at 665 (alteration in original).

Thus, the governing principle by which we must evaluate § 1983 claims is that the Due Process Clause is designed to prevent arbitrary exercise or abuse of government power. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003-04, 103 L.Ed.2d 249 (1989); Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068-69, 117 L.Ed.2d 261 (1992).

Nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private citizens. DeShaney, 489 U.S. at 195, 109 S.Ct. at 1002-03. Rather, the purpose of the Due Process Clause is “to protect the people from the State, not to ensure that the State proteet[s] them from each other.” Id. at 196, 109 S.Ct. at 1003. Thus, the general rule is that state actors are liable under the Due Process Clause only for their own acts and not for the violent acts of third parties. Id. at 197, 109 S.Ct. at 1004; Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996).

However, in certain limited circumstances the State has been found to have an affirmative duty to protect citizens from constitutional injury inflicted by a private person. Those circumstances have been framed as two exceptions to the general rule: (1) the special relationship exception; and (2) the danger creation exception.⁹ The special relationship exception arises where the State has taken an individual into custody and holds him there against his will. DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005-06.¹⁰ Such a relationship between the State and the individual imposes upon the State a different duty than would otherwise be applicable. The genesis for the special relationship analysis lies in the jurisprudence of tort law in which special relationships such as between a common carrier and a passenger; an innkeeper and a guest; a parent and a child; and a hospital and a patient have been found to impose a duty of care. See Restatement (Second) of Torts § 314A (1965).¹¹ If such a special relationship exists between the State and an individual, the State may have an affirmative duty to protect the individual from harm, and nonfeasance or inaction may give rise to liability. DeShaney, 489 U.S. at 199-200,109 S.Ct. at 1005-06.

Under the danger creation exception, the State may also be liable under § 1983 for failing to protect an individual from harm inflicted by a third party where the State has created the danger that ultimately causes the harm or the State has increased the individual’s vulnerability to the harm. See Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993). Although the circuit courts differ in their views as to how large a role the State must play in creating a danger before a corresponding duty to protect arises, at the least, the State’s involvement must be sufficient to satisfy the state action requirement of § 1983. Uhlrig, 64 F.3d at 572.

Since Sojka was a private party, the Facility Defendants, as state actors, would generally not be liable for his actions. Therefore, we must determine whether either exception to the general rule applies: specifically, whether Henderson’s circumstances gave rise to a special relationship with the Facility Defendants, or whether the Facility Defendants’ role in creating the danger culminating in Sojka’s attack on Henderson gave rise to a corresponding constitutional duty to protect. As we venture into this area of the law, we are mindful of the Supreme Court’s admonition that “guideposts for responsible de-cisionmaking in this uncharted area are scarce and open ended.... The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins, 503 U.S. at 125,112 S.Ct. at 1068.

A.

The only special relationship that has received the imprimatur of the Supreme Court is a custodial relationship. In DeShaney, the Supreme Court recognized the special relationship exception only in the narrow context of “incarceration, institutionalization, or other similar restraint of personal liberty,” which leaves an individual without the ability to provide for basic needs.¹² DeShaney, 489 U.S. at 200,109 S.Ct. at 1005-06.

Henderson was not incarcerated or institutionalized. However, she argues that the special relationship exception should be extended to include situations in which a state actor limits an employee’s ability to protect herself. In this ease, Henderson claims that the Facility Defendants restrained her ability to protect herself by: (1) housing Sojka in her unit even though they knew he was too dangerous for the Facility; (2) assigning her to an unguarded office with insufficient barriers between herself and the inmates; (3) requiring her to be exposed to inmates while alone in her office at a set time daily; and (4) prohibiting her from carrying a weapon in her office.

Even if we were willing to extend special relationship analysis beyond custodial settings, where the relationship between the parties is one of consensual employment, a special relationship is extremely difficult to show. This is true, in part, because “state law, rather than the Federal Constitution, generally governs the substance of the employment relationship.” Collins, 503 U.S. at 128,112 S.Ct. at 1070.

In Collins, a decedent’s wife brought an action under § 1983 alleging that the city deprived the decedent, who was fatally injured in the course of his employment, of life and liberty by failing to provide a reasonably safe work environment. The Supreme Court distinguished prior eases in which it had found that the State owed a duty to take care of individuals who had already been deprived of their liberty, and held that the city had no such duty to the decedent because he voluntarily accepted employment. Collins, 503 U.S. at 127-28,112 S.Ct. at 1069-70.

In circumstances similar to those in this ease, the Tenth Circuit also declined to elevate consensual employment to a special relationship. Uhlrig, 64 F.3d at 572; Liebson v. New Mexico Corrections Dep’t, 73 F.3d 274, 276 (10th Cir.1996). In Uhlrig, the plaintiff brought a § 1983 action after his wife was murdered by a patient in the state mental hospital in which she worked. The Tenth Circuit held that the special relationship exception was “inapplicable to the instant case because [the decedent] was simply an employee of the state ... and an employment relationship is consensual in nature.” Uhlrig, 64 F.3d at 572.

In Liebson, the plaintiff, who was employed as a librarian by a community college, was assigned to provide library services to the inmates housed in the maximum security unit of a state penitentiary. Initially, a corrections officer was present at all times that the plaintiff was on duty in the library. Prison officials then changed the officer’s schedule, leaving the plaintiff on duty in the library without an officer present. The plaintiff was subsequently kidnapped, held hostage, and sexually assaulted by an inmate library assistant. The plaintiff brought a § 1983 claim against the prison officials responsible for changing the schedule. In re-jeeting the assertion that a special relationship existed between the plaintiff and the defendants, the court held:

In particular, without downplaying the dangerous conditions that undoubtedly existed in the penitentiary, we believe the consensual nature of the employment relationship between [the plaintiff] and defendants differentiates this case from those in which a “special relationship” has been found to exist.... By her employment with the college and assignment to the prison library ... she was free to come and go each day of her employment. Through this employment relationship she was not taken into state custody and held against her will.

Liebson, 73 F.3d at 276. See also Walker v. Rowe, 791 F.2d 507, 511 (7th Cir.) (no special relationship between state and prison guards), cert, denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986).¹³

Numerous other courts that have addressed the issue since DeShaney and Collins have also refused to recognize a special relationship in circumstances other than incarceration or institutionalization. See Wooten v. Campbell, 49 F.3d 696, 700 (11th Cir.) (no special relationship between state and child where child was in mother’s physical custody and child did not rely solely on state for his physical needs and safety), cert, denied, — U.S. -, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995); Walton v. Alexander, 44 F.3d 1297, 1303 (5th Cir.1995) (no special relationship between state and student at state school for the deaf); Wright v. Lovin, 32 F.3d 538, 541 (11th Cir.1994) (consensual relationship of school to school children does not constitute a special relationship).

We conclude that Collins mandates a strict and careful approach to the law in this area, and we thus agree with those cases limiting the special relationship exception to circumstances of severe limitations on liberty in the nature of incarceration or institutionalization. A consensual employment relationship ordinarily does not meet this standard. Henderson argues that the Facility Defendants deprived her of her liberty by prohibiting her from carrying a weapon and forcing her to go to work in light of the known danger. These actions did not constitute a restraint on her liberty similar to incarceration or institutionalization. The Facility Defendants did not force Henderson to rely on them for the provision of her basic needs, nor did they limit her freedom of action or liberty. Therefore, we conclude that Henderson, as a voluntary employee at the Facility, did not have a special relationship with the Facility Defendants.

B.

We turn to an analysis of the danger creation exception¹⁴ which requires us to determine whether the Facility Defendants’ actions or inactions contributing to the danger that ultimately resulted in Sojka’s attack upon Henderson, gave rise to a constitutional duty to protect her from that attack.

In analyzmg the danger creation exception, we recognize that many state activities ¹⁵ have the potential for creating some danger. However, not every danger or vulnerability to danger created by the State gives rise to a corresponding constitutional duty to protect. Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.1990). We recognize the different approaches taken by the federal courts in determining when the constitutional duty to protect arises in the context of the danger creation exception. At least the Ninth and Eleventh Circuits have adopted a broad application of the exception and found a constitutional duty to protect in situations in which the State’s action or inaction provided the third party with an opportunity to cause the harm. See Cornelius v. Town of Highland Lake, 880 F.2d 348, 357-58 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993).¹⁶

In contrast, the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have refused to impose a duty to protect unless the State has affirmatively placed a person in a situation of known danger that the person would not have faced in the absence of the State’s involvement.¹⁷ See Uhlrig v. Harder, 64 F.Sd 567, 576 (10th Cir.1995) (refusing to allow § 1983 claim under danger creation exception where defendants allegedly created danger by requiring decedent to work with dangerous mental patient), cert. denied, — U.S. -, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996); Pinder v. Johnson, 54 F.3d 1169, 1175-76 (4th Cir.) (holding that police simply failed to provide adequate protection and did not create the danger where plaintiffs boyfriend committed affirmative act of harm), cert. denied, — U.S.-, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201-02 (5th Cir.1994) (questioning whether the danger creation exception is constitutionally sound and holding that school officials did not create danger by failing to implement security measures sufficient to protect student), cert. denied, — U.S. -, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995); Nobles v. Brown, 985 F.2d 235, 238 (6th Cir.1992) (refusing to find danger creation exception where female prison guard was raped by inmate because it was the inmate and not the State which inflicted harm); Gregory v. City of Rogers, 974 F.2d 1006, 1011-12 (8th Cir.1992) (rejecting argument that police officer placed individuals in danger by arresting the driver of their vehicle and leaving them in the vehicle with the keys in the ignition while they were intoxieat-ed), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993); Losinski v. County of Trempealeau, 946 F.2d 544, 550-51 (7th Cir.1991) (holding that deputy sheriff neither created danger nor subjected decedent involuntarily to existing danger by accompanying her to collect belongings from her home where decedent’s husband fatally shot her).¹⁸ These circuits require more than the creation of a dangerous environment in which harm occurs or the creation of an opportunity for a third party to cause the harm.

The context of the case before us, as well as our general analysis of the law on the subject, support adoption of the narrow construction of the danger creation exception. A prison is undeniably a dangerous environment. Each time a violent criminal is incarcerated in a prison, a danger is created. Each time a prison employee is required to make personal contact with an inmate, a danger is created. Yet, § 1983 was not created to impose liability upon prison officials for injuries to employees resulting from the officials’ failure to provide enough guards, for their decision to allow direct contact between inmates and employees, or for installing mirrors which are then used as weapons by inmates. In order to give rise to a constitutional duty to protect, the state actors must do more than merely create an environment in which harm occurs. Rather, the state actors must abuse their governmental power by subjecting a person to harm that would not have occurred in the absence of the state actor’s conduct.

Guided again by caution as mandated in Collins, we hold that the Facility Defendants’ role in the creation of the danger that resulted in Henderson’s harm did not give rise to a constitutional duty to protect. Henderson does not allege that the Facility Defendants caused her injuries. There is no allegation that the Facility Defendants intentionally provided Sojka with a weapon or encouraged the attack in any way.

Henderson does allege that the manner in which the Facility Defendants operated the Facility placed her in a dangerous situation or, at least, increased her vulnerability to danger. Henderson further alleges that the Facility Defendants affirmatively created the danger by ordering her to go to work.

We conclude that Henderson’s claim essentially is that the Facility Defendants failed to provide her with a safe work environment. We acknowledge that the Facility Defendants could have operated the Facility in a manner that lessened the risk of harm to Henderson. For example, it is possible that the Facility Defendants could have prevented the attack on Henderson by providing more guards, or placing bars between Henderson and the inmates. However, the Due Process Clause does not guarantee “a workplace that is free of unreasonable risks of harm.” Collins, 503 U.S. at 129, 112 S.Ct. at 1070. Even if the Facility Defendants operated the Facility in an unsafe manner, this does not give rise to a constitutional duty to protect Henderson. Furthermore, the Facility Defendants cannot be said to have created a danger simply by ejecting Henderson to go to work in a prison.

C.

Having concluded that the Facility Defendants had no duty to Henderson to protect against the acts of Sojka, we need go no further in our analysis. However, we do not wish to leave the impression that in a ease in which a duty was established, the state actor defendants would always be liable. Therefore, we proceed to discuss an additional step necessary to assert a cognizable § 1983 claim. Again, we make reference to general tort concepts and relate this prong of the analysis to culpability.

Not all state action that occurs in a custodial setting or that creates a danger or a vulnerability to danger imposes a corresponding constitutional duty to protect. A plaintiff must also allege facts that show that the State acted, or declined to act, with the requisite degree of culpability in failing to protect the plaintiff.

The level of culpability required to state a § 1983 claim based on a failure to protect from injury inflicted by a third party is more than mere negligence. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (“[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”) (alteration in original).

The level of culpability necessary has been variously identified as conduct that would “ ‘shock the conscience’ of federal judges,” Collins, 503 U.S. at 126, 112 S.Ct. at 1069 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)), and as conduct that is “deliberately indifferent,” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). We conclude that the Facility Defendants’ actions and omissions not only fail to “shock the conscience,” but also cannot be characterized as deliberately indifferent.

The “shock the conscience” standard was initially articulated in Rochin. In that case, police officers took the defendant to a hospital and required a doctor to pump the defendant’s stomach to recover two capsules of morphine. The morphine was then used as evidence against the defendant in a criminal trial in which the defendant was convicted of possessing a “preparation of morphine.” Ro-chin, 342 U.S. at 166, 72 S.Ct. at 206-07. In overturning the conviction, the Supreme Court stated: “[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.” Id. at 172, 72 S.Ct. at 209. The Court’s holding in Rochin suggests that the State’s conduct may rise to the level of a substantive due process violation if it “shocks the conscience.” This standard was repeated in Collins, where the Court held that the city’s failure to train its employees or warn them about known risks of harm could not “properly be characterized as arbitrary, or conscience shocking in a constitutional sense.” Collins, 503 U.S. at 128,112 S.Ct. at 1070.

The “shock the conscience” standard requires that a plaintiff do more than show that a state actor “intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Uhlrig, 64 F.3d at 574. In order to satisfy this standard, a plaintiff must demonstrate “a high level of outrageousness, because the Supreme Court has specifically admonished that a substantive due process violation requires more than an ordinary tort and that merely allowing unreasonable risks to persist in the workplace is not necessarily conscience shocking.” Id.

The deliberate indifference standard is the required standard in a § 1983 claim to set forth a violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (deliberate indifference to prisoner’s serious illness or injuries states cause of action under § 1983). In addition, several federal appellate courts have held that deliberate indifference is the appropriate standard of culpability to establish a due process violation under § 1983 where the State’s duty arises as a result of the creation of the danger which harms the plaintiff. See L.W. v. Grubbs, 92 F.3d 894, 896 (9th Cir.1996) (plaintiff must show that state official participated in creating a dangerous condition and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it); Mark v. Borough of Hatboro, 51 F.3d 1137, 1152-55 (3d Cir.) (holding that in a state created danger case even if there was a constitutional violation, § 1983 liability will not attach unless the defendants acted with deliberate indifference), cert. denied, — U.S. -, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995); Johnson, 38 F.3d at 201 (deliberate indifference would be required in state created danger ease).

Deliberate indifference contains an intent element that must rise at least to the level of recklessness. Uhlrig, 64 F.3d at 573. Reckless intent “involves an unreasonable disregard of a known great risk.” Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). See also Woodward v. City of Worland, 977 F.2d 1392, 1399 n. 11 (10th Cir.1992) (“[RJecklessness is generally regarded as satisfying the scienter requirement of § 1983 because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk.”), cert. denied, 509 U.S. 923, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993).

In this case, Henderson alleges that the Facility Defendants failed to protect her from Sojka’s attack, even though they had knowledge that an escape attempt might occur. We do not believe that these allegations support a conclusion that the Facility Defendants disregarded a known great risk. In order to rise to the level of conduct that manifests reckless disregard for a person’s constitutional rights, a state actor must manifest “obdurate disregard or complete indifference to risk, for example “when the actor does not care whether the other person fives or dies, despite knowing that there is a significant risk of death’ or grievous bodily injury.” Medina, 960 F.2d at 1496 (quoting Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989)).

Further, the level of culpability of the Facility Defendants must again be analyzed against the backdrop of causation. The Facility Defendants are not alleged to have harmed Henderson or to have caused Henderson’s injuries; they are alleged to have failed to intervene to prevent the injuries from occurring. When the state actor’s involvement in the chain of causation is more direct, the foreseeability of the injury and therefore the knowledge, or recklessness of the actor is easier to analyze. For instance, if a state actor engages in an unnecessary high speed automobile chase that results in an injury to a bystander, the causative element of that state actor’s conduct is clear and the question then becomes whether the defendant consciously disregarded serious, immediate, and proximate harm to a specifically definable group. See Medina, 960 F.2d at 1496-97.

Here, the Facility Defendants’ conduct was a number of steps in the causative chain removed from Henderson’s injuries and, therefore, the foreseeability of the injury to Henderson was more remote. Although the Facility Defendants may have permitted an unreasonably unsafe work environment to exist, we do not read the amended complaint to satisfy the level of foreseeability and reckless disregard of a known great risk required under § 1983.

The attack that Henderson suffered was tragic. We are not insensitive to her plight. However, we are not charged with determining whether she was wrongfully injured; rather, we are charged with determining whether the Facility Defendants engaged in conduct that violated Henderson’s constitutional rights. We conclude that they did not.

III.

Henderson’s complaint fails to allege the existence of a special relationship between Henderson and the Facility Defendants. Furthermore, the Facility Defendants’ role in the circumstances leading to Henderson’s injury was not, even in the light most favorable to Henderson, sufficiently causative to give rise to a corresponding duty to protect. Lastly, the Facility Defendants’ conduct was neither “conscience shocking,” nor completely and deliberately indifferent. Therefore, on the facts of this case, the general rule that a state actor is not liable for acts of violence committed by third parties applies. The Facility Defendants did not deprive Henderson of a constitutional right and are thus not liable under § 1983.¹⁹ For these reasons, we affirm the court of appeals decision.

LOHR, J., dissents, and KIRSHBAUM and SCOTT, JJ., join in the dissent.

SCOTT, J., dissents, and LOHR and KIRSHBAUM, JJ., join in the dissent.

1 . The Plaintiffs' amended complaint alleged that Gunther, director of the Colorado Department of Corrections, was also aware of the contents of the memorandum prior to the attack.

2 . Neither the complaint nor the amended complaint specify the import of the P-5 psychological rating.

3 . The amended complaint substituted Gunther for Zavaras as director of the Colorado State Department of Corrections.

4 . The Plaintiffs also submitted a certification stating that they were not waiving the right to appeal the trial court's dismissal of the state tort law claims in the original complaint.

5 .Specifically, the amended complaint alleged that the Amended Complaint Defendants:

(a) failed to provide adequate security personnel, equipment, and systems to operate the facility in a way that was not unreasonably dangerous!;]

(b) failed to maintain the facility adequately for its intended use[;]

(c) failed to provide sufficient support for [Henderson] to defend herself[;]

(d) improperly furnished the facility with fixtures and materials which were unreasonably subject to being converted to weapons by [Soj-ka] and ultimately used by [Sojka] as instruments to perpetrate the attack, beating, and torture of [Henderson] and her being taken and held hostage[;]

(e) allowed in the facility the housing of inmates unreasonably dangerous for the nature and resources of the facilityQ]

(f) intentionally placed [Henderson] in a situation of danger created by them with reckless indifference, in unguarded proximity with an inmate unreasonably dangerous for the facility]

(g) ... intentionally or recklessly failed to take any action in response to multiple warnings of the impending action by inmates to protect [Henderson] [;]

(h) ... intentionally placed [Henderson] in a situation of known danger of their creation, with deliberate indifference to that danger, after receiving warning of a pending incident.

6 . The trial court order also dismissed the Plaintiffs' claim that defendants Romer, Gunther, and Price violated the Plaintiffs’ constitutional rights by making negligent budgetary decisions. Henderson's briefs do not address this aspect of the trial court order and this issue is not before us on appeal.

7 . Thus, the second and third claims in the amended complaint are not before us on this appeal. Accordingly, we are not asked to consider whether Price and Wager violated any constitutional rights by informing the media of the hostage situation before informing Randy and the children.

8 . The Due Process Clause of the Fourteenth Amendment provides: ”[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. The Fifth Amendment provides the same protection against actions by the federal government. Because Henderson’s complaint is against employees of the State of Colorado, the Fourteenth Amendment is the applicable provision. Henderson's amended complaint alleges the deprivation of the right to be free from injury and the right not to be placed in a situation of known danger. The Supreme Cotut has held that the Fourteenth Amendment protects a liberty interest in physical security, see Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982), and we understand Henderson’s amended complaint to allege the deprivation of this interest.

9 . See Liebson v. New Mexico Corrections Dep’t, 73 F.3d 274, 276 (10th Cir.1996); Pinder v. Johnson, 54 F.3d 1169, 1174-77 (4th Cir.), cert. denied,U.S.-, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200-04 (5th Cir.1994), cert. denied,-U.S.-, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995); Reed v. Gardner, 986 F.2d 1122, 1124-25 (7th Cir.), cert. denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993); Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993); Cornelius v. Town of Highland Lake, 880 F.2d 348, 354 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990).

10 .Only in a custodial setting has the United States Supreme Court found that inaction by governmental officials can give rise to liability. In all other settings, the Court has required some affirmative act that causes an injury before imposing liability. DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005-06.

11 . Section 1983 should be read against a backdrop of tort liability. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. Department of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 2021-22, 56 L.Ed.2d 611 (1978).

12 . This requirement is clear from the Supreme Court's opinion in DeShaney where the Court held:

[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safely—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005-06 (citations omitted).

13 . Henderson argues that the Eleventh Circuit’s holding in Cornelius v. Town of Highland Lake, 880 F.2d 348, 354 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), suggests that she had a special relationship with the Facility Defendants. In Cornelius, the plaintiff, employed as the town clerk, was required to work in the town hall, an area where inmates from a local prison worked as part of a community work program. The inmates abducted her and terrorized her. The Eleventh Circuit found that there was a genuine issue of fact as to whether a special relationship was created between the plaintiff and her municipal employer.

We differ with the Eleventh Circuit’s analysis of the special relationship exception. We further note that the Eleventh Circuit has itself questioned whether the holding in Cornelius survives the United States Supreme Court’s pronouncement in Collins that a voluntary employment relationship, standing alone, does not impose a constitutional duty on government employers to provide a reasonably safe work environment. Wooten v. Campbell, 49 F.3d 696, 700 n. 4 (11th Cir.), cert. denied, — U.S.-, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995); Wright v. Lovin, 32 F.3d 538, 541 n. 1 (11th Cir.1994).

14 . DeShaney is credited with developing the danger creation exception, although the portion of the case so credited gives slight shrift to such a test. DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. Previous to DeShaney, the Supreme Court analyzed the danger creation test in tort law causation terms of whether the defendant’s conduct had a sufficiently close relationship to the claimed violation of the plaintiff’s rights in order to conclude that the defendant "subjected” the plaintiff to the deprivation of federally protected rights. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980).

15 . In considering whether to apply the danger creation exception, the court of appeals focused on whether Henderson alleged affirmative acts by the Amended Complaint Defendants or merely omissions. Henderson, 910 P.2d at 53. The court cited several cases holding that claims based upon governmental inaction or failure to act to prevent injuries caused by other means are claims based upon simple negligence and thus are not cognizable under § 1983. Id. The court then concluded that Henderson’s claims were not cognizable because the claims were "based upon assertions that various state officials failed to take action rather than that they affirmatively acted in a manner that either created or enhanced the position of danger.” Id. Inaction is typically actionable only in a special relationship context, see DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005-06; however, we recognize that the distinction between an act and an omission can be semantic and we therefore decline to turn our analysis on that distinction.

16 . Although the Ninth Circuit allowed the plaintiff's claim to proceed in Grubbs, the jury determined that the defendant had acted with gross negligence, but not recklessness or deliberate indifference. L.W. v. Grubbs, 92 F.3d 894, 895 (9th Cir.1996). The Ninth Circuit concluded that without a showing of deliberate indifference a plaintiff could not establish § 1983 liability against a state official for an injury to a prison employee caused by an inmate, and reversed the jury verdict in favor of the plaintiff. Id. at 900.

17 . The Third Circuit, although never expressly adopting the danger creation exception, has indicated support for a narrow application of the exception. See D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1373-76 (3d Cir.1992) (concluding that State did not create danger where school employees failed to investigate and prevent sexual abuse of female student by classmates), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993). Both the Second and Eighth Circuits have allowed plaintiffs to plead § 1983 claims where police officers created a danger by condoning a third party’s violent actions against the victim of the violence. See Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir.1993) (holding that complaint which alleged that police told "skinheads” they would not interfere in assaults against flag burners stated claims on which relief could be granted under § 1983); Freeman v. Ferguson, 911 F.2d 52, 54 (8th Cir.1990) (allowing plaintiff to amend pleadings to attempt to satisfy danger creation exception where police chief directed officers not to interfere with murderer's threats and intimidating actions against decedent, thereby increasing the decedent’s vulnerability to "the actions of [the murderer] and possibly ratifying or condoning such violent actions on his part”). We view the holdings in these cases as being consistent with a narrow application of the danger creation exception.

18 . The Seventh Circuit, based on the principle that “plaintiffs may state claims for civil rights violations if they allege state action that creates, or substantially contributes to the creation of, a danger or renders citizens more vulnerable to a danger tha[n] they otherwise would have been,” Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir.), cert. denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993), has allowed a § 1983 claim to proceed against police officers who removed sober drivers and left behind drunk passengers with keys. Id. at 1127. Under those circumstances, the court was satisfied that ”[b]y removing a safe driver from the road and not taking steps to prevent a dangerous driver from taking the wheel, the defendants arguably changed a safe situation into a dangerous one.” Id. But see Walker v. Rowe, 791 F.2d 507, 509 (7th Cir.) (holding that prison officials were not liable under § 1983 for acts and omissions which arguably increased the danger to which guards were exposed because the prisoners and not the prison officials injured the guards), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986).

19 . The Facility Defendants argue that they are entitled to assert the defense of qualified immunity. Because we conclude that the Facility Defendants have not violated Henderson’s constitutional rights, we need not consider the qualified immunity defense.