United States District Court, E.D. Virginia, Alexandria Division
ELLIS, III UNITED STATES DISTRICT JUDGE
case arises from a somewhat bizarre and nearly tragic set of
events. Plaintiff, a citizen and resident of Poland, claims
Officers Wheeler, Adcock, Blakely, Bronte-Tinkew, Clark,
Grande, Jakowicz, Labarca, McNaught, Mulhern, and Zesk
("the police defendants") are liable for violating
plaintiffs Fourteenth and Fourth Amendment rights pursuant to
42 U.S.C. § 1983 and for gross negligence under Virginia
law. Plaintiff also brings a claim of negligence against
defendants Brooks, a lifeguard and plaintiffs former
co-worker, and American Pool Inc., plaintiffs former employer
("the pool defendants"). The police defendants and
the pool defendants have each moved to dismiss plaintiffs
Complaint on a variety of grounds.
issue on defendants' motions to dismiss are the following
(i) Are the police defendants entitled to qualified immunity
with respect to plaintiffs Fourteenth Amendment claim brought
pursuant to § 1983?
Put differently, did the police defendants violate plaintiffs
"clearly established" substantive due process
rights by preventing a lifeguard from taking timely steps to
rescue plaintiff from drowning himself?
(ii) Did the police defendants violate plaintiffs substantive
due process rights by their own failure to prevent plaintiff
from drowning himself?
(iii) Did the police defendants violate plaintiffs right
against unreasonable seizure by failing to prevent plaintiff
from drowning himself after securing plaintiff within the
fenced-in area around the pool?
(iv) Did the police defendants' failure to prevent
plaintiff from drowning himself constitute gross negligence?
(v) Does Virginia's workers compensation scheme cover
plaintiffs negligence claims against the pool defendants and
thus deprive this court of subject matter jurisdiction over
standards that govern a motion to dismiss for lack of
subject-matter jurisdiction under Rule 12(b)(1), Fed. R. Civ.
P., and a motion to dismiss for failure to state a claim
under Rule 12(b)(6), Fed. R. Civ. P., are well settled and
thus require only brief elaboration.
to Rule 12(b)(6), a complaint must be dismissed when the
plaintiff fails to state a claim upon which relief can be
granted. The district court must examine the face of the
complaint and, taking all allegations of fact as true and
construing them in the light most favorable to plaintiff,
decide whether the complaint contains "sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
may also seek dismissal of the complaint pursuant to Rule
12(b)(1) on the ground that the court lacks subject matter
jurisdiction to decide the claims alleged in the complaint.
Similar to a 12(b)(6) motion, the district court must assume
the truth of the facts alleged in the complaint and decide
whether the complaint alleges facts upon which subject matter
jurisdiction can be based. Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982).
following facts are derived from the well-pleaded allegations
in the Complaint, which are taken as true for the purposes of
a motion to dismiss. See Papasan v. Attain, 478 U.S.
265, 283 (1986).
spring of 2016, plaintiff signed up for a program that would
allow him to work in the United States for the summer. Compl.
¶ 6. Plaintiff obtained employment with defendant
American Pool Inc. as a pool attendant at the Riverside
Apartments swimming pool in Fairfax County, Virginia.
Id. ¶¶ 7, 9. On May 23, 2016, plaintiff
arrived in the United States, and three days later plaintiff
began his employment with defendant American Pool Inc.
Id. ¶ 9. Defendant American Pool Inc. trained
plaintiff to clean the pool, arrange deck chairs, and check
the pH level of the water. Id. ¶ 10. Plaintiff
did not know how to swim, and defendant American Pool Inc.
did not require him to perform lifeguarding duties as part of
his employment. Id. ¶¶ 10, 16.
30, 2016, plaintiff arrived for work at the Riverside
Apartments pool. At some point that afternoon, plaintiff
experienced a psychotic episode,  which was caused by
plaintiffs bipolar disorder. Id. ¶¶ 2, 13,
53. Plaintiff exhibited irrational behavior, such as arguing
with guests over the colored wristbands required for entry
into the pool and grabbing one young woman by the arm and
ripping off her wristband. Id. ¶ 11. Plaintiff
began talking to himself in Polish and walking around the
pool without purpose and appeared to be emotionally or
mentally distressed. Id. Defendant Brooks, who was a
lifeguard also employed by defendant American Pool Inc.,
witnessed plaintiffs behavior and called for police
assistance. Id. ¶ 12. The police defendants
responded to the pool a few minutes later. Id.
¶¶ 13, 14.
the police defendants arrived, the police attempted to
communicate with plaintiff several times, but plaintiff did
not acknowledge the police defendants. Id. ¶
14. Instead, plaintiff blew a lifeguard whistle and
continually moved away from the police defendants.
Id. After discussing how to proceed, the police
defendants directed all pool patrons to leave the pool area
and locked the fence that surrounded the pool. Id.
¶ 17. The only individuals that remained inside the
fenced-in pool area were plaintiff, defendant Brooks, and the
police defendants. Id. Defendant Brooks informed the
police defendants about plaintiffs behavior and told the
police defendants that plaintiff was experiencing a psychotic
episode. Id. ¶ 15. Defendant Brooks also told
the police defendants that plaintiff could not swim.
Id. ¶ 16. According to the Complaint, the
police defendants understood that plaintiffs serious mental
health crisis and related behavior made plaintiff a potential
risk of harm to himself and to others at the pool.
Id. ¶ 19.
police defendants called one of plaintiffs Polish roommates
and a Polish-speaking police officer to the pool to attempt
to communicate with plaintiff, whose English was poor.
Id. ¶¶ 6, 21, 25. Again, plaintiff would
not acknowledge either the Polish-speaking officer or
plaintiffs Polish roommate. Id. ¶¶ 21, 25.
continued to exhibit unusual and erratic behavior. Plaintiff
paced around the pool and continued to talk to himself,
apparently praying in Polish. Id. ¶ 24.
Plaintiff threw his cell phone into the deep end of the pool
and then walked into the pool, submerging himself in the deep
end, which was eight feet deep. Id. ¶¶ 24,
37. After recovering the cell phone, plaintiff emerged from
the pool. Plaintiff then threw his cell phone into the deep
end of the pool a second time. Again, plaintiff walked into
the pool and submerged himself underwater. And again,
plaintiff emerged from the pool after recovering the cell
phone. Plaintiff then climbed into a lifeguard tower and
shouted and blew his whistle for no reason. The police
defendants continued to attempt to communicate with
plaintiff, but plaintiff did not respond. Id. ¶
some period of time, plaintiff finally stood calmly and
silently for about one minute near the ladder at the shallow
end of the pool. Id. ¶¶ 26, 28. Plaintiff
then walked slowly to the ladder and entered the water a
third time. Id. ¶ 28. The police defendants
neither ordered plaintiff not to re-enter the pool nor
physically prevented plaintiff from re-entering the pool.
Id. ¶ 27.
again walked into the deep end of the pool and submerged
himself underwater. Id. ¶¶ 28, 29.
Defendant Brooks and the police defendants stood around the
pool and watched plaintiff. Id. ¶ 30. After
some period of time, plaintiff grabbed onto the pool's
drain cover underwater in the deep end and struggled not to
surface. Plaintiff eventually vomited underwater and then
stopped moving. Id. ¶ 31. After being
underwater for one minute and twenty-two seconds, plaintiff
released the air retained in his lungs. The police defendants
and defendant Brooks continued to stand around the pool and
look at plaintiff underwater. Id. ¶ 32.
According to the Complaint, the police defendants and
defendant Brooks should have recognized that plaintiff was at
risk of drowning after plaintiff had been submerged for
thirty seconds and had released the air from his lungs.
Id. ¶¶34, 39.
point in time unspecified by the Complaint, defendant Brooks
expressed that he needed to enter the pool to rescue
plaintiff. Id. ¶ 40. As a trained lifeguard
with access to rescue equipment, defendant Brooks was fully
capable of rescuing plaintiff. Id. ¶ 41.
Nonetheless, one or more of the police defendants ordered
defendant Brooks not to enter the pool. Id. ¶
40. Although defendant Brooks did not agree with the police
defendants, defendant Brooks obeyed the police
defendants' order. Id. ¶ 42.
plaintiff had been submerged for over two and one-half
minutes, defendant Brooks again requested permission from the
police defendants to dive into the pool and rescue plaintiff.
This time the police defendants gave defendant Brooks
permission to dive into the pool. Id. ¶ 43.
Defendant Brooks brought plaintiffs body to the surface, and
several of the police defendants removed their belts and
jackets and jumped into the pool to help drag plaintiff out
of the pool. Id. ¶¶ 45, 47. In total,
plaintiff had been submerged for two minutes and forty-four
seconds. Id. ¶ 46.
police defendants began to perform cardio-pulmonary
resuscitation ("CPR") on plaintiff. Id.
¶ 47. Emergency medical technicians ("EMTs")
arrived about two minutes later and used a ladder to climb
over the locked pool fence to reach plaintiff. Id.
¶ 48. Upon arrival, the EMTs found that plaintiff was
not breathing and did not have a pulse. Id. ¶
49. The EMTs continued CPR and applied an automatic external
defibrillator to plaintiffs chest. Id. ¶ 50.
The EMTs revived plaintiff and transported plaintiff to
Fairfax Hospital Emergency Department. Id. ¶
remained in the hospital's Heart and Vascular Institute
until June 8, 2016. Thereafter, plaintiff was transferred to
the hospital's psychiatric unit, where he was diagnosed
with bipolar disorder and was found to have suffered from
psychosis, thought disorganization, delusions, and paranoia
on May 30, 2016. Plaintiff retained only scattered memories
of what had occurred during his psychotic episode.
Id. ¶ 53. On June 14, 2016, plaintiff was
discharged from the hospital and returned to Poland with his
father. Id. ¶ 54.
on these facts, plaintiff has brought suit to recover damages
for the physical and mental injury, emotional distress, and
medical expenses caused by the conduct allegedly taken by
defendants in response to plaintiffs psychotic episode and
attempt to drown himself. Specifically, plaintiff claims the
police defendants are liable for violating plaintiffs
Fourteenth and Fourth Amendment rights pursuant to 42 U.S.C.
§ 1983 and for gross negligence under Virginia law.
Plaintiff also advances claims of negligence under Virginia