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June 5, 1984

P.L.C., Plaintiff

The opinion of the court was delivered by: WEBER


 This matter is before the court on defendants' motion to dismiss plaintiff's civil rights complaint pursuant to Federal Rule 12(b) (6), failure to state a claim.

  The motion must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Furthermore, because we are dealing with a motion to dismiss for failure to state a cause of action under Fed.R.Civ.P. 12(b)(6), which would be dispositive on the merits, all allegations of the complaint are deemed to be true. Walker Process Equip. v. Food Mach. & Chem. Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965). For a recently published full discussion of Rule 12(b) (6) and distinctions to be drawn between it and a motion to dismiss pursuant to Federal Rule 12(b)(1) with respect to the issue of subject matter jurisdiction, see, Nguyen v. U.S. Catholic Conference, 548 F. Supp. 1333 (W.D. Pa. 1982), aff'd. 719 F.2d 52 (3d Cir. 1983). The opinion also extensively treats the concept of state action.

 The plaintiff, formerly a tenant in a Warren County Housing Authority apartment, was raped by the building maintenance man, an employee of the Authority. Plaintiff alleges that her assailant, Bernard Ryan, was hired notwithstanding the fact that the Authority knew or should have known of Ryan's prior convictions for rape and the fact that he was an alcoholic. Plaintiff alleges that the Authority's actions were negligent, reckless and carried out with callousness and indifference to their predictable consequences, and therefore violative of her constitutional rights. According to the allegations Ryan used keys furnished him by the Authority to enter plaintiff's apartment where he held a knife to her throat, threatened to kill her, and repeatedly raped and assaulted her. Plaintiff filed this and a similar action in state court against the Authority, its Executive Director, Lorence F. Brown, and other members of the Authority.

 We must assume at this stage in the proceedings, based upon allegations of the complaint, that defendants knew or should have known that the employ of Bernard Ryan created a clear and present danger that such an incident as this would occur.

 Our inquiry for purposes of disposing of this motion to dismiss focuses upon whether plaintiff has made out a claim of a violation of a constitutional right and whether that violation was carried out by means of state action. We believe that as an initial matter plaintiff's right to be free from such bodily injury and harm is a right of constitutional magnitude. The more difficult question is whether the conduct of the Authority and its directors constitute state action. It is generally recognized that while 42 U.S.C. ยง 1983 represents a species of tort law, generally federal relief is not available for strictly tortious or negligent conduct on the part of third parties. However, if there is a sufficient nexus between the harm and the officials involved then state action will be imputed to those who may have had the power or responsibility to prevent the resultant harm. Accordingly, the question of whether certain conduct is state action for purposes of invoking relief under federal statute turns on the proximity or the remoteness of the conduct of state officials to the injury. See, Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) and Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). In Blum v. Yaretsky, 457 U.S. 991, 1004, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982) the Court stated, "the purpose of the requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains."

 Reported cases germane to the present case treat the issue in the context of the release of state or federal prisoners who subsequently commit tortious acts upon members of the general population.

 Several circuits have subsequently considered similar issues. In Wright v. City of Ozark, 715 F.2d 1513 (11th Cir. 1983), a woman raped by an unknown assailant brought an action for damages under Section 1983 against the City, the Mayor of the City, the Chief of Police, and a member of the Police Department alleging that the defendants had deliberately suppressed information of prior rapes in a certain area of the city to avoid adverse publicity. The 11th Circuit affirmed the district court's dismissal of the complaint for failure to state a claim under Section 1983. The plaintiff characterized the defendants' conduct as constituting a high degree of gross negligence in reckless indifference to her rights amounting to wilful and intentional misconduct. Plaintiff acknowledged that defendants had not intentionally singled her out to be denied protection from a rapist and there was no allegation that the defendants knew of plaintiff before the rape occurred. Thus there was no special relationship between plaintiff and defendants.

 Relying on Martinez, the court in Wright reemphasized that the due process clause does not protect a member of the public at large from the criminal acts of a third person. The court concluded that "even if the state was remiss in allowing the third person to be in the position in which he might cause harm to a member of the public, . . . in the absence of a special relationship between the victim and the criminal, or between the victim and the state", there existed no constitutionally protected right.

 In Fox v. Custis, 712 F.2d 84, (4th Cir. 1983), plaintiff brought an action against state parole officers alleging that they failed to have a state parolee committed after violations of the terms of his parole. The parolee committed various crimes against the claimant all involving bodily harm. Plaintiff alleged that the actions of the defendants deprived her of liberty and property and that Martinez was distinguishable because of the short time interval between the conduct and the alleged injury and because defendants here were directly responsible for the supervision of the parolee. The district court dismissed all plaintiff's Section 1983 claims and held the defendant immune under state law claims. The Circuit took a different analytical approach than that suggested by the appellant and held that there was no constitutional right in the general public to be protected by the state from madmen or criminals, citing Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982). The court acknowledged that a constitutional right and infringement may arise out of a special relationship, custodial in nature, created by the state for particular persons. Examples considered by the court were inmates in state prisons and patients in various institutions. The court cited a long list of authorities for these relationships. The court concluded that the situation was similar to that in Martinez where the defendants were unaware that these claimants faced any special danger as opposed to the public at large.

 In Humann v. Wilson, 696 F.2d 783 (10th Cir. 1983), the court re-emphasized the principle that no constitutional claim could be found where the victim did not stand in any special relationship to the third party from which the responsible state officials, the parole officers, might have inferred a special danger. The Humann court considered a similar point made in Rieser v. District of Columbia, 183 U.S. App. D.C. 375, 563 F.2d 462 (D.C. Cir. 1977), where a negligence suit was brought in federal court based on diversity jurisdiction by the father of a woman who was raped and murdered by a District of Columbia parolee. The parolee had been assisted by the Department of Corrections in obtaining employment at the apartment complex where the murder took place. The action was sustained on state law grounds. We agree ...

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