UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-1262
MATEUSZ FIJALKOWSKI,
Plaintiff − Appellant,
v.
M. WHEELER; S. ADCOCK; S. BLAKELY; R. BRONTE-TINKEW; C. CLARK; J. GRANDE; R. JAKOWICZ; L. LABARCA; L. MCNAUGHT; W. MULHERN; M. ZESK,
Defendants – Appellees,
and
AMERICAN POOL INC.; SEAN BROOKS,
Defendants.
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WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS; THE RUTHERFORD INSTITUTE,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:18-cv-00492-TSE-MSN)
Argued: November 13, 2019 Decided: March 9, 2020
Before MOTZ, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge Harris joined.
ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Kimberly Pace Baucom, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellees. ON BRIEF: Bernadette E. Valdellon, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Karen Gibbons, Elizabeth Teare, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for Appellees. Jonathan Smith, Hannah Lieberman, WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C.; Carter G. Phillips, Mark P. Guerrera, David E. Kronenberg, Justin A. Benson, Joshua Moore, SIDLEY AUSTIN LLP, Washington, D.C. for Amicus Washington Lawyers’ Committee for Civil Rights and Urban Affairs. John W. Whitehead, Douglas R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Amicus The Rutherford Institute.
Unpublished opinions are not binding precedent in this circuit.
2 DIAZ, Circuit Judge:
Mateusz Fijalkowski brought this action under 42 U.S.C. § 1983 and state law,
arguing, as relevant here, that Fairfax County, Virginia police officers violated his
Fourteenth Amendment substantive due process rights when they delayed—for up to two-
and-a-half minutes—a lifeguard from rescuing him from drowning in a swimming pool.
He also alleges that the officers were grossly negligent under Virginia law when they
delayed his rescue and otherwise failed to assist him. The district court dismissed these
claims, concluding that the officers were entitled to qualified immunity on the substantive
due process claim and that Fijalkowski failed to state a gross negligence claim. For the
reasons that follow, we affirm.
I.
On May 23, 2016, twenty-three-year-old Mateusz Fijalkowski arrived in the United
States from his home country, Poland, to work for the summer. 1 Three days later,
Fijalkowski began working as a pool attendant at Riverside Apartments in Fairfax County,
Virginia. He was trained to clean the pool, check the pH level of the water, and arrange
1 Because this case comes to us on appeal from the grant of a motion to dismiss, we accept the facts alleged in the complaint as true and draw all reasonable inferences in Fijalkowski’s favor. See Hamilton v. Pallozzi, 848 F.3d 614, 620 (4th Cir. 2017).
3 the deck chairs. He wasn’t trained to perform lifeguarding duties, and he didn’t know how
to swim.
On May 30, 2016, Fijalkowski began acting irrationally at work. He argued with
guests over the colored wristbands required to enter the pool area, and he grabbed a young
woman by the arm and ripped off her wristband. He also began talking to himself in Polish
and walking around the pool without purpose, appearing distressed.
A lifeguard on duty that day, Sean Brooks, called the police, and Fairfax County
police officers arrived shortly thereafter. Brooks told the officers about Fijalkowski’s
behavior and that he appeared to be experiencing a mental health crisis. Brooks also told
them that Fijalkowski couldn’t swim. The complaint further alleges that the officers “were
aware that [Fijalkowski] was a supposed lifeguard who did not know how to swim and
who was experiencing a serious mental health breakdown, making himself a potential risk
of harm to himself and others at the pool.” J.A. 12.
The officers attempted to communicate with Fijalkowski, but he blew his whistle
and continually moved away from them. The officers directed all pool patrons to leave
and locked the fence that surrounded the pool. Only Fijalkowski, Brooks, and the officers
remained inside the fenced-in pool area. The officers called a Polish-speaking officer and
Fijalkowski’s Polish roommate to the pool to attempt to communicate with him. One of
the officers was trained in crisis intervention, but he and the others were unable to
communicate with Fijalkowski, who didn’t acknowledge them.
Fijalkowski continued to act erratically. He paced around the pool and talked to
himself. He threw his cell phone into the deep end of the pool and walked in to recover it,
4 submerging himself in the process. He soon emerged from the pool, but he then threw his
cell phone into the deep end a second time. Again, he walked into the pool to recover it,
submerged himself, and then emerged. He also climbed into a lifeguard tower and shouted
and blew his whistle. The officers continued to attempt to communicate with him, but he
didn’t respond.
Fijalkowski then went to the ladder at the shallow end of the pool and stood calmly
and silently for about one minute. 2 He entered the pool again, going to the deep end and
submerging himself. Brooks and the officers stood around the pool and watched him.
After some period of time, Fijalkowski grabbed onto the pool’s drain cover and struggled
not to surface. He vomited, and after about a minute and twenty-two seconds, he released
the air retained in his lungs. Eventually, he stopped moving. Brooks and the officers
continued to watch him, though they knew that he was at risk of drowning after he had
been submerged for thirty seconds and had released the air from his lungs.
At some point, Brooks told the officers that he needed to rescue Fijalkowski. Brooks
was able and equipped to do so, but the officers ordered Brooks not to enter the pool. After
Fijalkowski had been submerged for approximately two-and-a-half minutes, Brooks again
told the officers that he needed to rescue him, and (this time) the officers allowed him to
do so. Brooks dove into the pool and brought Fijalkowski to the surface. Several of the
officers jumped in to help remove him from the water.
2 At this time, a bystander began videotaping the incident. The contents of the video are incorporated into the complaint by reference, so we consider them here. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
5 Once Fijalkowski was out of the pool, the officers performed lifesaving measures.
Emergency medical technicians arrived and used a ladder to climb over the locked pool
fence to reach Fijalkowski. They found that he wasn’t breathing and didn’t have a pulse.
They applied an automatic external defibrillator to his chest. This revived him, and he was
transported to the hospital.
Fijalkowski remained in the hospital’s heart and vascular unit for just over a week.
He was then transferred to the psychiatric unit, where he was diagnosed with bipolar
disorder and psychosis. He was discharged from the hospital six days later and returned to
Poland.
Fijalkowski filed suit against the officers, Brooks, and Brooks’s employer, seeking
damages under 42 U.S.C. § 1983 and state law. As relevant here, Fijalkowski alleges that
the officers violated his Fourteenth Amendment substantive due process rights when they
delayed Brooks’s rescue efforts and that they were grossly negligent under Virginia law
when they delayed his rescue and otherwise failed to assist him. 3 The defendants moved
to dismiss the complaint, and the district court granted the motion, concluding, in relevant
part, that the officers were entitled to qualified immunity and that Fijalkowski failed to
state a claim of gross negligence. This appeal followed.
3 Fijalkowski also alleges that the officers violated his substantive due process rights when they failed to prevent him from entering the pool. The district court dismissed this allegation for failure to state a claim. The court also dismissed Fijalkowski’s claims against Brooks and Brooks’s employer. Fijalkowski does not appeal these rulings.
6 II.
We first consider the district court’s dismissal of Fijalkowski’s substantive due
process claim on the ground that the officers were entitled to qualified immunity. “We
review a qualified immunity-based motion to dismiss de novo.” Tobey v. Jones, 706 F.3d
379, 385 (4th Cir. 2013).
A.
Qualified immunity shields state officials from civil liability under § 1983 “unless
their actions violated ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.
1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Determining whether a
state officer is entitled to qualified immunity is a two-step inquiry.” Bailey v. Kennedy,
349 F.3d 731, 739 (4th Cir. 2003). First, we consider “whether a constitutional right would
have been violated on the facts alleged.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 200
(2001)). Second, “assuming that the violation of the right is established,” we “consider
whether the right was clearly established at the time such that it would be clear to an
objectively reasonable officer that his conduct violated that right.” Id. (quoting Brown v.
Gilmore, 278 F.3d 362, 367 (4th Cir. 2002)). We may consider the steps in either order.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
To determine whether a right was clearly established, we consider whether
controlling authority, or a “robust consensus of persuasive authority,” Booker v. S.C. Dep’t
of Corr., 855 F.3d 533, 544 (4th Cir. 2017) (internal quotation marks omitted), would have
given the officers “‘fair warning that their conduct,’ under the circumstances, ‘was
7 wrongful,’” Williams v. Strickland, 917 F.3d 763, 769 (4th Cir. 2019) (internal quotation
marks omitted) (quoting Williamson v. Stirling, 912 F.3d 154, 187 (4th Cir. 2018)). We
must define the right allegedly violated “at a high level of particularity.” Braun v.
Maynard, 652 F.3d 557, 562 (4th Cir. 2011) (quoting Campbell v. Galloway, 483 F.3d 258,
271 (4th Cir. 2007)).
Although this standard “do[es] not require a case directly on point, . . . existing
precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). However, “when ‘the defendants’ conduct
is so patently violative of [a] constitutional right that reasonable officials would know
without guidance from the courts’ that the action was unconstitutional, closely analogous
pre-existing case law is not required to show that the law is clearly established.” Clem v.
Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (quoting Mendoza v. Block, 27 F.3d 1357,
1361 (9th Cir. 1994)). 4
B.
Fijalkowski contends that the officers violated his substantive due process rights
when they ordered Brooks not to enter the pool to rescue him. Fijalkowski relies on the
state-created danger doctrine, which holds that state actors are liable under the Due Process
Clause when they “created or increased the risk of private danger, and did so directly
4 To emphasize the point, Fijalkowski directs us to our recent decision in Ray v. Roane, 948 F.3d 222 (4th Cir. 2020). We agree with Ray that “directly on-point, binding authority” is not required where “the right was clearly established based on general constitutional principles,” id. at 229 (quoting Booker, 855 F.3d at 543), and we apply that principle here.
8 through affirmative acts, not merely through inaction or omission.” Doe v. Rosa, 795 F.3d
429, 439 (4th Cir. 2015). We decline to resolve whether the officers’ conduct constitutes
a substantive due process violation under the state-created danger doctrine. Rather, we
agree with the district court that even if it does, the officers are entitled to qualified
immunity because it was not clearly established at the time of the incident that delaying by
up to two-and-a-half minutes 5 the rescue of a drowning person who may have posed a
danger to others violated that person’s substantive due process rights.
The parties have identified no controlling authority placing the constitutionality of
the officers’ conduct beyond debate, and we agree that there is none. But this doesn’t end
our inquiry; a “robust consensus of persuasive authority” may also clearly establish the
right allegedly violated. Booker, 855 F.3d at 544 (internal quotation marks omitted).
Fijalkowski offers no such robust consensus. The officers, for their part, point to three
cases from our sister circuits addressing alleged substantive due process violations by
officers who prevented the rescue of drowning persons. The officers contend that together,
these cases fail to provide a consensus, let alone a robust consensus, that would have given
them fair warning that their conduct violated Fijalkowski’s substantive due process rights.
We agree. 6
5 It is not clear from the complaint or the video when Brooks first sought to rescue Fijalkowski. If Brooks did so immediately after Fijalkowski entered the water, the officers would have delayed his rescue for a maximum of two-and-a-half minutes. 6 The officers also highlight three other cases addressing alleged substantive due process violations by officers who interacted with suicidal persons. Appellees’ Br. at 24– 26. Because these cases neither found violations nor involved the delay of rescue efforts
9 The first of the factually similar cases is Ross v. United States, 910 F.2d 1422 (7th
Cir. 1990). In Ross, a twelve-year-old boy fell into a lake and sank. Id. at 1424. Within
ten minutes, two lifeguards, two firefighters, and one police officer arrived on the scene to
conduct a rescue. Id. In addition, two nearby civilians with a boat and scuba diving
equipment offered to assist in the rescue. Id. Despite these resources, a county deputy
sheriff ordered all rescue efforts to stop because, under a county policy, only divers from
the city fire department were authorized to rescue someone drowning in the lake. Id. at
1424–25. When the civilians offered to attempt the rescue at their own risk, the deputy
sheriff threatened to arrest them and positioned his boat to prevent them from entering the
water. Id. at 1425. Authorized city divers did not arrive until the boy had been underwater
for thirty minutes. Id. They pulled him from the water, but he later died. Id.
Addressing the deputy sheriff’s conduct, the Seventh Circuit stated that “a citizen
in peril for his life ha[s] a constitutional right that prevent[s] a police officer from cutting
off private avenues of lifesaving rescue without providing an alternative.” Id. at 1432. The
court also held that the right was clearly established at the time of the incident. Id. The
court so held because “a fundamental tenet of [its] constitutional jurisprudence” is that “the
state cannot arbitrarily assert its power so as to cut short a person’s life.” Id. at 1433.
Applying that principle to the record facts, the court concluded that a reasonable officer in
the deputy sheriff’s position would have known that he could not arbitrarily use his
without providing an alternative, we agree with the officers that the cases would not have given them fair warning that their conduct here was unlawful.
10 authority to prevent private rescue efforts. Id. The court explained that “[t]here was simply
no rational reason for [the deputy sheriff] to prefer ‘authorized’ but equally competent
rescuers located away from the scene.” Id.
The next factually similar case is Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir.
1991), abrogation on other grounds recognized by Atchinson v. District of Columbia, 73
F.3d 418, 421 (D.C. Cir. 1996). There, Andrews jumped into the Washington Channel as
a police officer attempted to arrest him. Id. at 1269. Andrews swam across part of the
Channel but then turned back towards the shore and began to tire. Id. The officer attempted
to throw a life ring to Andrews, but it didn’t reach him. Id. Officers then saw a private
boat approaching, and they hailed the boat to assist in rescuing Andrews. Id. After
reaching Andrews, the boat owner told the officers that she needed to enter the water to
rescue him and that she had been trained to do so. Id. However, the officers directed her
not to enter the water, stating that Andrews was an escaped prisoner and could be
dangerous. Id. Approximately thirty minutes later, official rescuers arrived and pulled
Andrews from the water. Id. He was later pronounced dead. Id.
The D.C. Circuit recognized that Ross “held that police action deliberately or
recklessly interfering with ongoing private rescue efforts may establish a constitutional
tort.” Id. at 1270. However, the D.C. Circuit found the facts in Andrews “much less
troubling than those in Ross.” Id. at 1271. Among other things, the court noted that the
officers in Andrews “were concerned with Andrews’s bizarre behavior.” Id. In addition,
the court concluded that even if the officers violated Andrews’s substantive due process
rights when they interfered with the private rescue effort, the right was not clearly
11 established “in a particularized sense.” Id. (alterations adopted) (quoting Brogsdale v.
Barry, 926 F.2d 1184, 1191 (D.C. Cir. 1991)). It explained:
While it should have been clear to the police that they could not “arbitrarily assert their power so as to cut short a person’s life,” it certainly could not have been clear to them that they were required to refrain from taking any action when a private citizen, drawn into a police rescue operation, was about to expose herself to substantial danger, of which she was not completely aware.
Id. (internal citation omitted and alteration adopted) (quoting Ross, 910 F.2d at 1433).
The final factually similar case is Beck v. Haik, No. 99-1050, 2000 WL 1597942
(6th Cir. Oct. 17, 2000) (unpublished). In Beck, a man jumped or fell from a bridge into a
river. Id. at *1. City police officers and the city’s director of public safety arrived a few
minutes later. Id. In addition, members of a group of trained civilian divers heard a report
of the incident and went to the scene to assist in the rescue. Id. The volunteer divers told
the public safety director that they were prepared to attempt a rescue. Id. However, the
public safety director instructed them not to enter the water because, pursuant to a joint city
and county policy, only the county dive team was authorized to conduct underwater
rescues. Id. The county dive team arrived thirty-five minutes after the volunteer divers
had offered to attempt a rescue. Id. at *2. They pulled the man from the water and
attempted to resuscitate him, but he later died. Id.
The Sixth Circuit agreed with Ross that “official action preventing rescue attempts
by a volunteer civilian diver can be arbitrary in a constitutional sense if a state-sponsored
alternative is not available when it counts.” Id. at *4. The court stated that Ross “pointed
to” the conclusion that the public safety director’s conduct was unconstitutional, but it held
12 that even if it was, he was entitled to qualified immunity because no Supreme Court or
Sixth Circuit precedent clearly established that the Sixth Circuit would follow Ross. Id. at
*7.
We agree with the officers that these cases do not amount to a robust consensus of
persuasive authority that would have given them fair warning that their conduct violated
Fijalkowski’s substantive due process rights. Only Ross expressly held that an officer
violated a drowning person’s substantive due process rights by preventing private rescue
efforts without providing an alternative. Beck merely suggested that the public safety
director did so. One case is not a robust consensus of persuasive authority.
Moreover, the facts in Ross and Beck are distinct from those here in two key
respects. First, the officer in Ross and the public safety director in Beck prevented the
private rescue efforts for approximately thirty and thirty-five minutes, respectively.
Second, neither the officer in Ross nor the public safety director in Beck had reason to
believe that the drowning persons posed a danger to others. These cases would not have
given the officers here fair warning that delaying Fijalkowski’s rescue for up to two-and-
a-half minutes, knowing that he may pose a danger to others, violated his substantive due
process rights.
The circumstances here are closer to those in Andrews. There, the officers were
concerned with Andrews’s bizarre behavior, and, although the private rescuer said she had
13 rescue training, they believed that he posed a danger to her. And there, the court suggested
that the officers’ conduct did not rise to the level of that found unconstitutional in Ross. 7
Accordingly, Ross, Beck, and Andrews would not have given the officers fair
warning that delaying Fijalkowski’s rescue under the circumstances here violated his
substantive due process rights.
But this doesn’t end our inquiry. Fijalkowski insists that the officers’ conduct so
patently violated the fundamental principle that “the state cannot arbitrarily assert its power
so as to cut short a person’s life,” Ross, 910 F.2d at 1433, that objectively reasonable
officers would have known their conduct was unconstitutional even without closely
analogous case law. We cannot agree.
Looking to the facts alleged in the complaint, we cannot say that the officers’
conduct amounted to a patently arbitrary assertion of power. True, the complaint alleges
that the officers knew that Fijalkowski was at risk of drowning after being submerged for
thirty seconds and that Brooks was able and equipped to rescue him. But the complaint
also alleges that the officers were aware that Fijalkowski’s inability to swim and his mental
state made him a risk of danger to others. And, they had seen him enter and exit the pool
twice before on his own. Unlike in Ross, where “[t]here was simply no rational reason”
for the officer to prevent the rescue efforts, id., here there were such reasons. And
7 The officers in Andrews were also concerned that the private rescuer didn’t know of the danger Andrews may have posed, while here, Brooks knew of Fijalkowski’s erratic behavior, mental state, and inability to swim. But, given the similarities that remain, we don’t think this difference would have given the officers fair warning that their conduct was unconstitutional.
14 ultimately, the officers allowed Brooks to rescue Fijalkowski after (at most) two-and-a-
half minutes, far less than the amount of time that had elapsed in Ross, Beck, and Andrews.
Accordingly, the complaint doesn’t allege conduct that amounts to a patently
arbitrary assertion of power to cut short Fijalkowski’s life. And this is so, even as we are
mindful that at the motion to dismiss stage, we may not draw inferences against
Fijalkowski. We are also mindful that the rationale for the officers’ conduct isn’t alleged
in the complaint, and we don’t make any inferences about that rationale here. We only
conclude that on its face, the complaint alleges facts belying the contention that the
officers’ conduct was a patently arbitrary assertion of power.
We therefore affirm the district court’s dismissal on qualified immunity grounds of
Fijalkowski’s substantive due process claim.
III.
We next consider the district court’s dismissal of Fijalkowski’s gross negligence
claim. “We review de novo the grant of a motion to dismiss for failure to state a claim.”
Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011).
Under Virginia law, gross negligence is “a degree of negligence showing
indifference to another and an utter disregard of prudence that amounts to a complete
neglect of the safety of such other person.” Elliott v. Carter, 791 S.E.2d 730, 732 (Va.
2016) (quoting Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 918 (Va. 2004)).
“Because ‘the standard for gross negligence in Virginia is one of indifference, not
15 inadequacy,’ a claim for gross negligence must fail as a matter of law when the evidence
shows that the defendants exercised some degree of care.” Id. (alterations adopted)
(quoting Kuykendall v. Young Life, 261 F. App’x 480, 491 (4th Cir. 2008) (unpublished)
(per curiam)). Ordinarily, the question of whether gross negligence has been established
is a matter for the jury. Id. However, when no reasonable juror could find that gross
negligence has been established, the court must dismiss the claim. Id.
On appeal, Fijalkowski draws our attention to the officers’ conduct after he
submerged himself for the third time and argues that this conduct amounts to gross
negligence under Virginia law.
We disagree and conclude that the facts alleged in the complaint show that the
officers exercised some degree of care during that time. 8 In particular, the officers came
to the deep end of the pool and monitored Fijalkowski, they eventually permitted Brooks
to rescue him, and they also assisted in the rescue. Even if they waited too long to do so,
we agree with the district court that the claim is one of inadequacy, not indifference.
Accordingly, we affirm the district court’s dismissal of Fijalkowski’s gross
negligence claim.
IV.
8 As a result, we need not address the officers’ arguments that Fijalkowski can’t recover damages because he committed the common law crime of attempted suicide and that they aren’t liable because they didn’t owe Fijalkowski a special duty.
16 For the reasons given, the district court’s dismissal of Fijalkowski’s complaint is
AFFIRMED.