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March 3, 1999


The opinion of the court was delivered by: Van Antwerpen, District Judge.


Plaintiff, the estate of Richard Burke ("Plaintiff"), brought this 42 U.S.C. § 1983 civil action against, inter alia, Defendants Mahanoy City, Mahanoy City Police Department, Chief John Lewis, Officer John Kaczmarczyk ("Kaczmarczyk") and Officer William McGinn ("McGinn") [collectively referred to as "Defendants"]. Plaintiff also alleges a state claim of wrongful death against some of the Defendants. Presently before this court is Defendants' Motion for Summary Judgment. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED in its entirety.


On the evening of December 1, 1995, a "drinking party" was held by Jessica Didgen and Holly Rhoades at their apartment located at 126 E. Centre Street, Mahanoy City, Pennsylvania. See Defs.' Br. at 2.*fn1 Among those attending the party was the decedent, Richard Burke ("Burke"). See Pl.'s Br. at 1.*fn2

Prior to attending the party, and at various times during the night of December 1st, Sheldon Buscavage ("Buscavage") and William Beninsky ("Beninsky") consumed several beers at local drinking establishments. See id. at 3, 6. They first arrived at the party sometime around 10:30 p.m. See Defs.' Br. at 2. Shortly thereafter they left the party and later returned between 12:00 a.m. and 1:00 a.m. on the morning of December 2nd. See id. During one or both of Buscavage's and Beninsky's visits to the party, they consumed a significant amount of alcohol and also ingested cocaine. See Defs.' Br. at 2, 3; Pl.'s Br. at 4.

Earlier that evening, it is alleged that a fight broke out at the party. See Pl.'s Br. at 4. This fight eventually carried out onto the street, at which time McGinn and Kaczmarczyk were summoned to the scene. See id. at 4-5. No citations were issued and the situation was diffused. See id. at 6.

At approximately 2:45 a.m. on December 2nd, Jessica Didgen reportedly requested the assistance of two of her friends, Frank Styka ("Styka") and Chuckie Schmerfeld ("Schmerfeld"), so that they could remove Buscavage and Beninsky from the party. See Defs.' Br. at 3. A fracas ensued as a result of their forced departure from the party. See Pl.'s Br. at 7. This fight began inside the apartment and, like the earlier disturbance, carried out onto the street. See id. There is disagreement over whether McGinn and Kaczmarczyk witnessed the above incident from their parked vehicle across the street. The officers deny that they saw the fight, while witnesses assert that they did.*fn3 See id. at 7-8. The officers allege that they were sitting in their vehicle across the street from the party at approximately 2:20 a.m., at which time they witnessed neither a fight nor a crowd of people. See id. at 8. Witnesses contradict this and allege that the police observed the entire incident and did not leave the scene until afterward. See id.

Shortly after the fight, Buscavage and Beninsky encountered McGinn and Kaczmarczyk.*fn4 See Defs.' Br. at 3. Beninsky approached the officers, and he proceeded to inform them that he and Buscavage had been assaulted and that the police should go and arrest the guys who did it. See id. It is undisputed that Beninsky was visibly intoxicated when he approached the officers. See id. at 5; Pl.'s Br. at 8. The parties disagree, however, as to whether Beninsky was "calm" and "very respectful" toward the officers, see Defs.' Br. at 5, or whether he was angry and irate. See Pl.'s Br. at 9. Specifically, Plaintiff claims that Beninsky became angry when the police informed him that they could not do anything about his complaint, stating: "If you don't do your job, I'll take care of it myself." See id. Defendants maintain that, upon being informed of the proper procedure for filing a complaint, Beninsky simply thanked the officers and went on his way. See Defs.' Br. at 4.

Witnesses also report that, after the fight, either Buscavage or Beninsky stated: "I'm going to kill ya's . . . blow your f'ing heads off."*fn5 See Defs.' Br. at 3. According to Holly Rhoades, who witnessed the incident and heard the above remark, the statement was not taken as a threat because the declarant was simply drunk and angry. See id. at 3. Plaintiff claims that McGinn and Kaczmarczyk were present in a parked car across the street when one of the young men yelled this, but the officers maintain that they were not present for the fight. See Pl.'s Br. at 7-9. At approximately 3:00 a.m. on December 2nd, Beninsky returned to the party with a loaded gun, at which time he proceeded to shoot and kill Burke and injure several others. See Defs.' Br. at 2.

Plaintiff asserts that "Mahanoy City is a drinking town where it is common to see public drinking, fighting, public drunkenness, underage drinking, disorderly conduct, loitering and constant violation of curfew laws, open container laws, disorderly conduct laws, fighting, etc." See Pl.'s Br. at 2. Moreover, Plaintiff has alleged that is was common for the Mahanoy City Police Department to turn a blind eye toward these types of behaviors and offenses. See id. at 27-34.


The court shall render summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. See id. at 248, 106 S.Ct. 2505. All inferences must be drawn and all doubts resolved in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrates the absence of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First Nat'l Bank of Pa. v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence which would support a jury finding in its favor. See Anderson I, 477 U.S. at 249, 106 S.Ct. 2505.


In this Section 1983 action, Plaintiff has brought claims against the individual police officers, and also against Mahanoy City, the Mahanoy City Police Department and Chief John Lewis. First, Plaintiff alleges that McGinn and Kaczmarczyk violated his Fourteenth Amendment right to substantive due process (Count IV). Pl.'s Compl. at ¶¶ 123-133. Plaintiff also asserts that Defendants Mahanoy City, the Mahanoy City Police Department and Chief John Lewis violated his right to due process through their: (1) custom, policy and practice of failing to address Mahanoy City's problems of, inter alia, underage drinking, loitering and fighting; and (2) inadequate supervision of the city's police officers (Counts I & II). Id. at ¶¶ 91-117. Finally, Plaintiff alleges a state claim for wrongful death against Defendants Mahanoy City, the Mahanoy City Police Department and Chief John Lewis (Count III).*fn6 Id. at ¶¶ 118-122.

A. Substantive Due Process Claim Against Individual Officers

McGinn and Kaczmarczyk assert that Plaintiff has not suffered a violation of his right to substantive due process. They further argue that, even if the court finds a constitutional violation, they are not liable because of qualified immunity. We will examine each of these claims in turn.

1. Claims Under 42 U.S.C. § 1983

First we turn to the individual liability of McGinn and Kaczmarczyk under § 1983. The court's analysis begins with a discussion of the requirements for establishing a constitutional claim under 42 U.S.C. § 1983. Section 1983 reads, in pertinent part, as follows:

  Every person who, under color of any statute,
  ordinance, regulation, custom, or usage, of any State
  or Territory or the District of Columbia, subjects,
  or causes to be subjected, any citizen of the United
  States or other person within the jurisdiction
  thereof to the deprivation of any rights, privileges,
  or immunities secured by the Constitution and laws,
  shall be liable to the party injured in an action at
  law, suit in equity, or other proper proceeding for

Section 1983 does not, in and of itself, create substantive rights. Instead, "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). A plaintiff seeking to establish a claim under Section 1983 "must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). In the case at bar, Plaintiff has alleged that Defendants violated Burke's right to substantive due process as guaranteed by the Fourteenth Amendment by failing to protect him when the facts of this case created a duty on their part to do so.

     a. Substantive Due Process Claim and the "State-Created
                         Danger" Theory

Plaintiff's substantive due process claim against McGinn and Kaczmarczyk is grounded on the fact that the Fourteenth Amendment protects citizens from the deprivation of life by the State without due process of law. See U.S. Const. amend. XIV. Regarding the state-created danger theory, Plaintiff argues that one may state a claim for a civil rights violation if he "allege[s] state action that creates[,] or substantially contributes to the creation of[,][a] danger or renders citizens more vulnerable to [a] danger than they otherwise would have been." See Pl.'s Br. at 11 (quoting Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993)). Specifically, Plaintiff argues that the officers should be held liable under this theory because they knew the following:

  (1) that the area in question was a "hot spot" for
  drinking, loitering, fighting and ...

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