under these statutes because of the bar of government immunity..." (Plaintiff's Brief, p. 18) Ford does argue, however, that the individual County Defendants are not protected by any immunity pursuant to 42 Pa.Cons.Stat.Ann. § 8550 (relating to willful misconduct).
Ford vigorously contests the assertion of Defendants that her substantive due process cause of action under 42 U.S.C. § 1983 is barred under the holding of DeShaney and its progeny. While recognizing the applicability of DeShaney, Ford attempts to distinguish it from the facts of this case. Ford claims that she has stated a cognizable theory of recovery under both a "special relationship" theory and a "state-created danger" theory. The Complaint can be read to state either theory.
I begin my discussion with an overview of DeShaney.
The facts of DeShaney are as follows. When Joshua DeShaney was one year old, his parents were divorced. Randy DeShaney, Joshua's father, was awarded custody of the child. Two years after the divorce, Winnebago County, Wisconsin, authorities first learned that Joshua might be a victim of child abuse. The Winnebago County Department of Social Services ("DSS") interviewed Randy DeShaney concerning the alleged abuse. Randy DeShaney denied the allegations and DSS did not pursue them further.
A year later, Joshua was admitted to a local hospital with multiple bruises and abrasions. DSS was notified by the physician who examined Joshua that Joshua was the suspected victim of child abuse. Joshua was then placed by the juvenile court in the temporary custody of the hospital. A "Child Protection Team" was convened by the county to review Joshua's situation. The Child Protection Team determined that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. Protection measures were recommended, however, by the Child protection Team. These measures included enrolling Joshua in a pre-school program, providing his father with certain counselling services, and encouraging his father's girlfriend to move out of the home. Joshua was then returned to the custody of his father.
A month after being returned to the custody of his father, Joshua was once again treated by emergency room personnel for suspicious injuries. No action was taken by the DSS caseworker. During the next six months, the DSS caseworker made monthly visits to Randy DeShaney's home, during which she not only observed a number of suspicious injuries on Joshua's head, but she also found that the protective measures recommended by the Child Protection Team had not been followed. In November, 1983, Joshua was once again treated in the emergency room for injuries which the hospital reported to DSS as being caused by child abuse. In March, 1984, Randy DeShaney beat Joshua so severely that he fell into a life-threatening coma. Joshua and his mother then filed suit against Winnebago County, DSS and various employees of DSS.
The Supreme Court, in rejecting the DeShaneys' § 1983 claim, stated that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors...Its purpose was to protect the people from the State, not to ensure that the State protected them from each other." DeShaney, 489 U.S. at 195-196. The Court further rejected the DeShaneys' contention that a special relationship existed between the state and Joshua. The DeShaneys argued that a special relationship existed because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed its intention to protect Joshua against that danger. Id. at 197.
The Court, in holding that absent a special relationship the State had no constitutional duty to protect Joshua against his father's violence, recognized that there are "certain limited circumstances [whereby] the Constitution imposes upon the State affirmative duties of care and protection with respect to certain individuals." Id. at 198. The circumstances recognized by the Court, however, were described as those when "the State takes a person into its custody and holds him there against his will." Id. at 199-200.
The Court reasoned, "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. at 200. Finally, the Court stated that simply because "the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter." Id. at 201.
Ford first argues that a special relationship has been established which may form the basis of liability on the part of Defendants. Although Ford attempts to factually distinguish DeShaney from the case at bar, we believe that the holding of DeShaney clearly precludes a finding, under the facts as alleged by Ford, that a special relationship existed between Shawntee and Defendants at the time she was killed by her father. Ford may therefore not proceed, based on the holding of DeShaney, on her special relationship theory.
Ford next argues that "the actions and inaction of CYS unnecessarily exposed Shawntee to extreme danger." (Plaintiff's Brief, p. 14) Ford relies on a "state-created danger" theory eluded to in DeShaney and discussed in Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995) (discussing, but specifically reserving decision on whether the Third Circuit recognizes the state-created danger cause of action); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1373 (3d Cir. 1992); Johnson v. Dallas Independent Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); and Cornelius v. Town of Highland Lake Ala., 880 F.2d 348 (11th Cir. 1989). With respect to the facts alleged in the Complaint, Ford claims in her brief that she has alleged facts sufficient to state a state-created danger theory because CYS failed to investigate Booker's circumstances, and failed to report known information to the Juvenile Court concerning, inter alia, the existence of an outstanding Protection from Abuse Order which enjoined Booker from having any contact with his then live-in girlfriend, which would have disqualified Booker from acting as Shawntee's custodian, thereby subjecting Shawntee to increased risk of harm. (Plaintiff's Brief, p. 14)
Ford also argues, with respect to County Defendants Thomas J. Foerster, Pete Flaherty, Larry Dunn, and Allegheny County, that "the constitutional deprivation experienced by Shawntee was directly caused by agency policy that resulted from among other deficiencies, the inadequate training of its personnel." (Plaintiff's Brief, p. 15) Defendants argue, in their reply brief, that "the linchpin in imposing liability in [the context of special relationship and state-created danger] is that the violation itself was created by state actors, not private citizens." (Defendants' Reply Brief, p. 6-7)
I begin my analysis with a review of the state-created danger theory. Some courts have stated that when state actors knowingly place a person in danger, the state actors may be liable for foreseeable injuries that result from their conduct, whether or not the victim was in formal state custody. Johnson, 38 F.3d at 200 (student shot and killed at school by a non-student); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (female passenger raped after police officer impounded the vehicle in which she was a passenger and left her alone in a high-crime area); Cornelius, 880 F.2d 348 (municipal employee abducted and held hostage for three days by two prisoners--one of whom had a violent criminal history--who had been allowed by the state to participate in a work-release program at a municipal town hall); K.H. ex rel. Murphy, 914 F.2d 846 (child abused by foster parents). In each of these cases, "the courts uniformly [have] held that state actors may be liable if they created the plaintiffs' peril, increased their risk of harm, or acted to render them more vulnerable to danger." Johnson, 38 F.3d at 200. I emphasize, however, that the Third Circuit, while discussing the state-created danger theory, has carefully avoided adopting it as a viable theory of constitutional recovery. See Mark, 51 F.3d at 1152.
The rationale behind the state-created danger theory generally has been expressed that "if the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982), cited in Wood, 879 F.2d at 594. In order to prove liability under the state-created danger theory, "the environment created by the state actors must be dangerous; they must know it to be dangerous; and...they must have used their authority to create an opportunity that would not otherwise have existed for the third party's crime to occur. Put otherwise, the defendants must have been at least deliberately indifferent
to the plight of the plaintiff." Mark, 51 F.3d at 1152, citing Johnson, supra.
The Third Circuit, in Mark, observed that the state-created danger cases decided to date generally have four things in common: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. Mark, 51 F.3d at 1152.
Although the state-created danger theory has been clearly recognized when the State fails to protect children in foster homes from mistreatment at the hands of their foster parents, K.H. ex rel. Murphy, 914 F.2d at 852; DeShaney, 489 U.S. at 201 fn 9, I have found no cases recognizing the state-created danger theory when the mistreatment comes at the hands of the child's parent, as presented in this case. In fact, the Seventh Circuit in K.H. ex rel. Murphy, specifically pointed out that
there is...a difference between placing a child with a member of her family and placing the child with a foster parent...State employees who withhold a child from her family run the risk of being sued by the family for infringing their liberty of familial association...and we do not want to place child welfare workers on a razor's edge--damned if they return the child to its family and damned if they retain custody of the child or place him in a foster home or institution."