The opinion of the court was delivered by: TROUTMAN
Presently before us is the defendants' motion for summary judgment. We may grant the motion only if there is no genuine issue as to any material fact and the defendants are entitled to a judgment as a matter of law. Federal Rule of Civil Procedure 56(c). As we previously stated in General Sound Telephone Co., Inc. v. AT&T Communications, Inc., 654 F. Supp. 1562 (E.D. Pa. 1987)
It is now quite clear that as to issues on which the nonmoving party bears the burden of proof, summary judgment may be granted where the moving party demonstrates that there is an absence of proof to support the nonmovant's claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d , 106 S. Ct.  (1986). Stated in another way, there is no genuine issue of material fact in dispute if there is insufficient evidence to establish a claim or defense.
When such an argument is made by the moving party, it is the responsibility of the proponent of the claim or defense to demonstrate to the Court that there is sufficient evidence available from Which a jury might return a verdict in his favor under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. , 91 L. Ed. 2d 202 (1986); Bushman v. Halm, 798 F.2d 651 (3d Cir. 1986).
Moreover, the evidence relied upon must be examined in light of the proponent's evidentiary burden at trial. In other words, the Court is obliged to measure the evidence available to defeat the summary judgment motion against the standard to be applied by the jury at trial, Whether it be preponderance of the evidence, clear and convincing evidence, or some other standard imposed by the substantive law which governs the issue. Id.
Thus, in determining whether there are factual issues for trial, the Court must examine the record in light of the elements necessary to establish the claim or defense in question and in light of the standard under which the jury will be required to consider the evidence. Only those issues essential to the claim or defense can possibly be material and such issues can be in dispute only if the nonmovant can point to sufficient conflict in the evidentiary sources listed in Fed. R. Civ. P. 56(c) and (e) such that a jury's resolution of the issues is required. The nonmovant may not conjure a genuine -- issue of material fact by relying upon the allegations of the complaint alone or by relying upon evidence that is merely colorable rather than significantly probative. Anderson [477 U.S. 242, 91 L. Ed. 2d at 212, 106 S. Ct. 2505].
On the other hand, the Court is precluded from considering credibility or Weight of the evidence and from drawing its own inferences from the evidence. Id. at 216.
Id. slip op. at 3; see also, Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987); J. E. Mamiye & Sons, Inc. v. The Fidelity Bank, 813 F.2d 610 (3d Cir. 1985) (Becker, J., concurring); and Equimark Commercial Finance Company v. C.I.T. Financial Services Corporation, 812 F.2d 141 (3d Cir. 1987). In other words, all inferences from the evidence must be drawn in favor of the nonmoving party. With these precepts in mind, we proceed to examine the merits of the defendants' motion.
The parties essentially do not dispute the facts of this case. They are as follows: In July of 1984, a man named Richard P. "Tex" Miller assaulted the plaintiff's decedent, Kathleen Dodosh, allegedly to an extent that she required hospitalization. Miller assaulted the plaintiff again in her hospital room. The Allentown Police Department did not receive a report of either incident.
On October 19, 1984, the deceased obtained a temporary Protection-from-Abuse (PFA) order from the Court of Common Pleas of Lehigh County of the Commonwealth of Pennsylvania pursuant to 35 Pa. C.S.A. § 10181-10190 (Purdon's Supp. 1986). The deceased, in her petition for the temporary PFA order, stated that she and Miller had resided together for approximately two and one-half years, though they were not married. She further alleged in the petition that on October 10, 1984, Miller threatened to kill her and "anyone who got in his way"; that he had a drinking problem and had been hospitalized many times for alcohol abuse; that in October, 1984, Miller "pushed" the deceased, "hit her around", "smashed her furniture and made several threats to kill" himself and her; that on another occasion in October, 1984, Miller "beat up" the deceased two days in a row, requiring her hospitalization for "two weeks", during which Miller assaulted her again; and that in August, 1984, Miller "choked her so hard that he lifted her off the ground two feet while heavily drunk". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. E.) The Allentown Hospital records contained in the record before us, however, reflect that the deceased was admitted to the hospital on July 18, 1984, and was apparently discharged the following day. The records list her "admitting diagnosis" as "depressive disorder". (Id. at Ex. B). While the records do mention complaints by the decedent that Miller had assaulted her, nowhere do the hospital records refer to any physical injuries which required that she be hospitalized. More importantly, the plaintiff has presented no evidence that any of the incidents described in the petition were ever reported to the Allentown police.
On the same day, i.e., October 19, 1984, at 5:11 P.M., the Allentown Police Department received a report of an "unwanted person" at the apartment building where the decedent resided. The complaint had been filed by a "concerned neighbor who heard what she believed to be a disturbance between the (decedent) and (Miller)". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. G). The decedent informed the Allentown police officer who responded to the call that there was no problem. (Id.; see also, deposition of Daryl Hendricks, plaintiff's responses to defendants' summary judgment motion, Paper # 16, Appendix (hereinafter, simply "Appendix") IV).
On October 20, 1984, at 1:30 P.M., the Allentown Police Department received a report of an "unwanted person" at the decedent's residence. Upon the patrolman's arrival, the decedent exhibited the temporary PFA order she had obtained the prior day and informed the officer that Miller had appeared at her apartment door the previous night in an intoxicated state. She stated that she had allowed him to sleep there, but called the police when he did not wake up and leave. The patrolman told Miller to leave and he complied. (Defendants' Motion for Summary Judgment, Paper # 15, Ex. H; see also, deposition of Joseph Stauffer, Appendix III, pp. 3-5).
On November 21 and December 7, 1984, the Allentown police were again called to the decedent's apartment. On both occasions, Miller was again removed from the scene without arrest. (Defendants' Motion for Summary Judgment, Paper # 15, Exs. I and J).
On December 9, 1984, a neighbor of the decedent who resided in the same apartment building reported a "prowler" to the Allentown police. The patrolman who responded to the call learned upon arrival that the "subjects" reported on the fire escape of the structure resided in the building and were using the fire escape due to a "10-40" sleeping in the "breesway (sic)". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. K; see also, deposition of Thomas Houck, Appendix IV, pp. 3-15). The patrolman arrested the "10-40", i.e., Tex Miller, transported him to Allentown Police Headquarters and cited him as a "public drunk". (Id. at Ex. L).
On January 21, 1985, the Lehigh County Court of Common Pleas made the temporary PFA order a permanent order of the court. (Plaintiff's Complaint, para. 15, and Defendants' Answer, para. 15). The order directed Miller to refrain from abusing or threatening to abuse the decedent and not to go near her residence. The court further ordered that copies of the order be served upon the Allentown Police Department as well as Miller, and that if Miller violated the order he could be found in violation of the Protection From Abuse Act and/or in indirect criminal contempt of the court. (Plaintiff's Supplemental Memorandum of Law to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, Paper # 7, Ex. A); see also, Dudosh v. City of Allentown, 629 F. Supp. at 845, n. 7.
On January 24, 1985, at 1:49 P.M., the deceased filed another report of an "unwanted person" at her residence with the Allentown Police Department. Miller was again sent on his way, but he was not arrested. (Defendants' Motion for Summary Judgment, Paper # 15, Exs. M and N; see also, deposition of Michael S. Popovich, Appendix IV, pp. 3-6).
On January 25, 1985, at 3:58 A.M., the individual defendant Warg transported the decedent to "Turning Point", a non-profit organization providing social services to abused spouses. Warg stated in his report that the decedent informed him that Miller was knocking on her door and driving around the block. Warg did not see Miller in the area. (Defendants' Motion for Summary Judgment, Paper # 15, Ex.Q; see also, deposition of Daniel Warg, Appendix VI, pp. 31-39).
On January 25, 1985, at 9:15 A.M., the decedent filed a complaint with the Allentown police that Miller was following and harrassing her. The reporting officer noted the PFA order against Miller, and stated that Miller could not be located in the area. (Defendants' Motion for Summary judgment, Paper # 15, Ex. Q: see also, deposition of Carl W. Held, Appendix III, p. 9).
On January 26, 1985, the Allentown police received another report of an "unwanted person" from the deceased, who reported that Miller was at her residence harrassing her. Once again, the responding police officer could not locate Miller following a search of the area. (Id. at Ex. R). Later that same day, however, Miller was arrested for indirect criminal contempt pursuant to the PFA order when he was found on the front porch of the decedent's dwelling. He was committed to the County Prison. (Defendants' Motion for Summary Judgment, Paper # 15, Ex. S; see also, deposition of Donald Wayne Leauber, Appendix II, pp. 7-9). The record does not disclose the disposition of the charge.
On March 17, 1985, the Allentown police received a report of an "attempted entry" into the decedent's residence from Kathleen Dudosh. The report filed by the responding officer, Balliet, states that, "(Miller) has threatened to kill the complainant and everyone that lives with her in her apartment". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. U). The reporting officer noted that the decedent possessed a PFA order against Miller. Finally, he reported that, "complainant states that she is afraid that the suspect will come back and try to make good his threats. The suspect also left a note on the complainant's mail box that said (next)". (Id.; see also, deposition of James Balliet, Appendix II, pp. 4-8, 10 and 16). (Parentheses in original).
The record before us indicates that a copy of Balliet's March 17 report was forwarded to the Allentown Police Department's Detective Bureau. The report filed by the detective who received the patrolman's report states the following:
This office did no further follow up investigation on this matter because of the above facts. It has been our policy not to get involved in matters of this nature. Usually the parties are told to bring private prosecution because most times they get back together after the incident causing the separation. This fact was verified during the investigation in incident 85-16022 on 28 March 1985, when neighbors showed that Mr. Miller had been with Miss Dudosh on a number of occasions since the abuse papers were served. On a number of occasions he had stayed with Miss Dudosh overnight.
(Id.) (Emphasis added). The detective did not file this report, however, until March 29, 1985, the day after Miller murdered the decedent. The detective testified in his deposition that he received a copy of the report, filed by Balliet on Sunday, March 17, the following day, Monday, March 18, when his shift began at 3:00 P.M. and he picked up all the reports in the Detective Bureau's "bin". He stated that following the decedent's murder, his superiors asked him why he had performed no follow-up work on the report filed by Balliet. In response to the inquiry, he filed the March 29 report partially quoted above. The detective also explained in his deposition that the "policy" of not getting involved, referred to in his report, was not a policy adopted by the Allentown Police Department in general, but rather, was a policy followed by the Detective's Bureau. He testified that the Bureau "did not get involved in any domestic cases . . ., unless there was physical abuse or physical harm naturally then like aggravated assault. Other than that they would advise the shift, the uniform (sic) who handle any of those complaints". (Appendix IV, deposition of James McCurley, Jr., p. 9).
On March 28, 1985, Miller shot and killed the decedent and then committed suicide. The decedent had on that date again contacted the Allentown Police Department to request their assistance when Arlene Bell, the individual who lived in the apartment below the decedent, informed her that Miller had entered Dudosh's apartment through a window at the top of a fire escape on the side of the building. (Appendix VIII, deposition of Arlene Bell, p. 11). The individual defendants responded to the decedent's call for help. Upon their arrival, the decedent was standing in front of the apartment building. The trio, after the decedent handed Warg a copy of the PFA order, proceeded to ascend the stairs to the second floor of the apartment building where the entrance to the decedent's apartment was located. Arlene Bell testified that prior to the three ascending the stairs, the decedent asked her whether Miller was "still up there". (Id.) Bell testified that she responded, "Yes, he is still up there", to which the decedent responded, "Well, I have two police officers with me to go upstairs". (Id.) Bell testified that she then told the decedent, "You are going to be killed", "they can't do anything to protect you", "Don't go up. Stay down here and let them go up". (Id.) Bell explained, however, that when she said, "You are going to be killed", she didn't mean with a gun, but rather, "physically, because he used to beat her". (Id.) She also testified that in response to her invocations not to go upstairs, the decedent stated, "No; I can talk to him . . . I can handle him". (Id.) Both Schwartz and Warg testified in their depositions that they did not hear any of this conversation. (See Appendix V, deposition of Dean Schwartz, p. 34, and Appendix VI, deposition of Daniel Warg, pp. 50-52). Nor has the plaintiff adduced any evidence whatsoever that would tend to contradict their testimony on this subject. At no time did Schwartz and/or Warg direct the decedent to remain outside or prevent her from accompanying them upstairs. It is also clear that the individual defendants did not force the decedent to accompany them to her apartment. The only inference that may be drawn from the record is that the decedent willingly and of her own volition escorted the police officers to her apartment.
Upon arriving at the apartment's entrance, the decedent unlocked the door. The door was swung open. Officer Schwartz yelled, "He has a gun". Schwartz stepped back from the doorway. Miller entered the doorway and fired a single shotgun blast into the chest of the decedent. Miller withdrew into the apartment. The individual defendants withdrew down the stairway. Miller at some point shortly thereafter committed suicide by firing the same shotgun he had used to kill the decedent into his own chest. (See Appendix V, deposition of Dean Schwartz; Appendix VI, deposition of Daniel Warg; and Appendix VIII, deposition of Arlene Bell).
A. The Due Process Claim.
In our memorandum denying the defendants' motion to dismiss the plaintiff's claim that the individual defendants deprived the decedent of her Fourteenth Amendment due process rights by failing to provide her with adequate police protection, we concluded, relying heavily upon the Third Circuit Court of Appeals' decision in Estate of Bailey By Oare v. County of York ("Bailey"), 768 F.2d 503 (3d Cir. 1985), that we could not say as a matter of law that the plaintiff could prove no set of facts upon which a jury could conclude that the individual defendants deprived the plaintiff's decedent of her due process rights. We premised our ruling on the belief that the plaintiff had alleged in his complaint sufficient facts upon which a "special relationship" could be found to have existed between the defendants and the decedent, thereby vesting in the decedent a constitutional right to adequate police protection. See Dudosh v. City of Allentown, 629 F. Supp. at 855. Presently before us, however, is a motion for summary judgment. The burdens upon the parties in this context at variance with the burdens they faced in the context of a motion to dismiss for failure to state a claim need not be discussed since they are apparent by comparison of our earlier opinion and our discussion above as to the standards we are required to apply in disposing of a summary judgment motion.
Subsequent to our decision on the defendants' motion to dismiss, we became aware of a number of additional cases which we believe merit discussion prior to addressing the defendants' summary judgment motion as to the plaintiff's due process claims.
The Seventh Circuit Court of Appeals in Walker v. Rowe, 791 F.2d 507 (7th Cir. 1986), was faced with a due process claim similar to that asserted by the plaintiff here. In Walker, prison guards and the estates of deceased guards brought actions against officials of the Illinois Department of Corrections claiming that the defendants had deprived the injured and deceased guards of their due process rights by failing to provide them with safe working conditions. In rejecting the plaintiffs' claims, the court stated that:
'Due process' does not mean 'due care'. Davidson v. Cannon,  U.S. , 106 S. Ct. 668, 670, 88 L. Ed. 2d 677 (1968).
The level of safety to be provided by the police to the people . . . is determined by political and economic forces, not by juries implementing the due process clause.
792 F.2d at 509. (Emphasis in original).
The First Circuit Court of Appeals in a case even more analogous to the case sub judice similarly stated that:
The (F)ourteenth (A)mendment . . . does not protect against the deprivation of life by any person at all, but only against the deprivation of life by the state without due process. Where, as in these circumstances, the victim dies at the hands of a private individual who was neither an agent of the state nor employed by the state, can it be said that the state deprived her of life without due process? If not, there was no violation of the ...