Backup Of Jail Sewer System Does Not Deprive Officer Of Due Process

Gordon Belanger is a deputy sheriff assigned to corrections with the Oakland County, Michigan Sheriff’s Office. In 2005, the sewer system for the jail flooded, exposing employees to unsanitary working conditions. Belanger was eventually treated for blisters on his fingers that were later diagnosed as methicillin resistant staphylococcus aureus (MRSA).

Belanger eventually sued the County, claiming that the fact that the sewer backed up combined with what he perceived to be the County’s inadequate reaction to the backup violated his substantive due process rights. A federal trial court dismissed Belanger’s lawsuit.

The Court began by describing the high threshold necessary to prove a substantive due process claim. The Court noted that to succeed in a substantive due process claim, an employee must demonstrate (1) violation of a particular constitutional right and (2) actions that shock the conscience. Simple negligence does not rise to the level of a substantive due process violation. As the Court put it, “behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim, conduct intended to injure in some way unjustifiable by any government interest, is the sort of official action most likely to rise to the conscience-shocking level.”

With that background, the Court concluded that Belanger had not met the threshold for showing a violation of his substantive due process rights. The Court observed that “the jail had an infection control policy in place since 1997 that included strict adherence to universal precautions. In July 2005, special precautions were implemented in response to suspicion of inmates with MRSA. Belanger concedes that he received training for health and safety, including universal precautions, more than five times prior to the flood. Belanger does not satisfactorily assert that the County engaged in conscience-shocking behavior because policies were in place, training was provided, and information was given to employees regarding prevention of the spreading of infectious disease.”

The Court also dismissed Belanger’s assertions that the County had inadequately responded to the flood. To the contrary, the Court found that the record showed that the County was “diligent in the maintenance and concern of the sanitation and safety of the jail. In response to the flood, a professional cleaning service cleaned and disinfected the area and the County removed and replaced the affected carpet within a month of the damage occurring. A difference of opinion as to the cleaning standards used in response to the flood in this case might at best give rise to a claim of negligence, but no reasonable jury could find that the County’s actions shocked the conscience, and thus no substantive due process violation occurred.”

Belanger v. County of Oakland, 2009 WL 960385 (E.D. Mich. 2009).

This article appears in the June 2009 issue