OPINION AND ORDER
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.
I. FACTUAL BACKGROUND
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
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.
II. STANDARD OF REVIEW
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.
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
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 other criminal
(2) that the excessive use of alcohol was a problem
in Mahanoy City;
(3) that there was a party taking place at 126 E.
Centre Street, and that there was drinking and
fighting occurring as a result of said party; and
(4) that those persons inside the apartment at
approximately 3:00 a.m. on December 2nd were in
danger because the officers heard Beninsky state that
he was going to return and blow their heads off.
Therefore, Plaintiff argues that the officers' knowledge of the
above events in fact created the dangerous situation, and that
they should be held liable for Burke's death because they failed
to take appropriate action.