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HARDMON v. COUNTY OF LEHIGH

June 17, 1985

ELANDA HARDMON, Mother and Natural Guardian of SHA-TIA MONIQUE HARDMON, A Minor
v.
THE COUNTY OF LEHIGH, et al.


Huyett, J.


The opinion of the court was delivered by: HUYETT

HUYETT, J.

 Plaintiff Elanda Hardmon brought this action on behalf of her minor daughter, Sha-Tia Monique Hardmon, pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 seeking damages for injuries her minor daughter allegedly sustained during an attack by Charles Callaway, an inmate at Lehigh County Prison, who was in the control and custody of defendants. Plaintiff alleges that defendants illegally released Callaway on a forty-eight hour furlough despite the fact that only two days previously plaintiff had informed prison officials that inmate Callaway, while on work release from Lehigh County Prison, had gone to the residence of plaintiff and had harassed and threatened plaintiff and had broken a window. (Plaintiff's complaint, para. 19.) Plaintiff further alleges that defendants failed to follow established procedures before releasing Callaway on work release. As a result of the incident, plaintiff's minor allegedly suffered the trauma of having Charles Callaway attempt to kill her.

 Defendants in this action include the County of Lehigh; David Bausch, the Chief Executive of Lehigh County; Leroy Beans, Warden of Lehigh County Prison; Timothy Carver, Deputy Warden of Lehigh County Prison; Kimberly DeFrain, Work Release Supervisor; and Ross Stuart, Furlough Officer.

 Presently pending before me is defendants' joint motion for summary judgment. For the reasons stated below, this motion shall be granted in part and denied in part.

 Defendants' first argument is that they are not liable to plaintiff's minor for any injuries she may have sustained during the attack by inmate Charles Callaway because they were unaware of her existence prior to the incident giving rise to the injuries and had no reason to know that inmate Callaway was a threat to her. In support of this position, defendants rely upon Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1979) in which the Court held that appellants' decedent's death was too remote a consequence of the parole officers' actions to hold them responsible under federal civil rights law. Under Martinez, therefore, the key question is the proximity or the remoteness of the conduct of state officials to the injury. In Martinez, the Parole Board released a rapist who five months later raped and killed a girl. The Court concluded that the action of the parolee could not be characterized as state action because the incident occurred five months after the parolee's release from prison and because the Parole Board was not aware that plaintiff's decedent faced any special danger different from that faced by the public at large. Similarly, in Wright v. City of Ozark, 715 F.2d 1513 (11th Cir. 1983), the court held that plaintiff failed to state a claim under § 1983 when she alleged defendants had deliberately suppressed information about rapes in a certain part of the city on the grounds that there was no special relationship between plaintiff and defendants and the due process clause does not protect a member of the public from the criminal acts of a third person.

 Martinez, and its progeny, must be distinguished from the present case. Here, defendants were allegedly on notice that inmate Callaway had been to the house in which plaintiff and her minor resided, that he had broken a window and that he had harassed and threatened plaintiff. Nevertheless, defendants released Callaway on furlough for forty-eight hours. During the first twenty-four hours, Callaway went to the house and attacked a visitor, plaintiff and allegedly plaintiff's minor. Callaway considered plaintiff's minor to be his daughter, a fact which at least one of the defendants knew. See, deposition of Mr. Ross Stuart, p. 51-52.

 Moreover, applying the principles of duty from a long line of negligence cases, it can be concluded that plaintiff's minor was within the known zone of danger because she resided in plaintiff's home. See Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). The court's analysis in Rieser v. District of Columbia, 183 U.S. App. D.C. 375, 563 F.2d 462 (D.C. Cir. 1977) provides a useful guide in determining the special relationship between the victim, the authority, and the third party. In Rieser, plaintiff's decedent had been raped and murdered by a parolee who had been hired to do maintenance work at the apartment complex in which the decedent resided. Plaintiff sued the District of Columbia and the assailant's parole officer for negligence and misrepresentation in failing to inform the apartment complex of the parolee's prior history of violent sex-related crimes. The court held that the issue of whether or not the District of Columbia breached a duty which presented a specific and unreasonable risk of harm to women tenants of the apartment complex thus giving rise to a special duty toward all those women correctly went to the jury.

 In P.L.C. v. Housing Authority of County of Warren, 588 F. Supp. 961 (W.D. Pa. 1984), the court held that the plaintiff had stated a cause of action pursuant to § 1983 when she alleged that she had been raped by a building maintenance man who had been hired by the housing authority with knowledge of his prior conviction for rape and because plaintiff stood in a special relationship to the housing authority unique from the public at large. In P.L.C., the assailant was also acting as an agent of the authority; nevertheless, the case stands for the proposition that the authority owed a duty to all tenants of the apartment complex despite the fact that it did not owe a duty to the public at large. In this case, defendants knew or should have known that inmate Callaway was a threat both to plaintiff and other persons who resided in her house, particularly Callaway's daughter. Combined with the immediacy with which Callaway acted, defendants' knowledge of the danger Callaway posed is sufficient to state a cause of action pursuant to § 1983.

 Defendants next contend that plaintiff's §§ 1985 and 1986 claims must fail because there are no allegations that defendants conspired to discriminate against plaintiff's minor because she was black. In order to state a claim pursuant to 42 U.S.C. § 1985(3), plaintiff must allege that defendants conspired to deprive her minor of equal protection of the law. To state a § 1986 claim, plaintiff must further allege that defendants knew of the § 1985(3) conspiracy, was in a position to prevent or help to prevent the deprivation caused by the conspiracy, and nevertheless failed to do so.

 In count two of her complaint, plaintiff alleges that defendants Leroy Beans and Timothy Carver, "acting as agents of, and with the approval and acquiescence of, Defendants Bausch and County of Lehigh, colluded, connived, and conspired to deprive Plaintiff of her fundamental right to liberty including her freedom of bodily security and integrity, and of equal protection of the laws, because of her race." As presently worded, this allegation does not state a cause of action pursuant to §§ 1985 and 1986 for purposes of this case because it does not allege a conspiracy directed at plaintiff's minor. Rather, count two merely constitutes a restatement of the allegations plaintiff made in her related case, civil action number 83-2988.

 Moreover, defendants contend that they could not have conspired against someone they did not know and someone who sustained no injury as a result of the incident. Plaintiff has, however, alleged that her minor suffered damages from the trauma to which she was exposed as a result of the attack by Callaway. This is sufficient to state a claim. Defendants, however, are correct that a necessary element of a conspiracy for purposes of a § 1985 action is that the conspirator act knowingly and willfully and with the intent to deprive the plaintiff of equal protection of the laws. There is no allegation that defendants Beans and Carver, or Bausch knew of plaintiff's minor's existence, or that they acted knowingly and willfully, in concert to deprive her of her rights. *fn1" Therefore, plaintiff's § 1985 claim on her behalf of her minor must fail.

 In order to state a § 1986 claim, plaintiff must first properly allege a § 1985 claim. Because plaintiff's § 1985 claim fails, ...


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