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GONZALEZ v. ANGELILLI

March 5, 1999

ISABEL GONZALEZ, INDIVIDUALLY AND ACTING AS ADMINISTRATOR OF THE ESTATE OF IPPOLITO "LEE" GONZALEZ AND LOUIS GONZALEZ AND ELIZABETH GONZALEZ AND LOUIS GONZALEZ, JR. AND MARIANNE MIHALICK AND CHRISTINE MIHALICK DERENZO
v.
FRED T. ANGELILLI AND PATRICIA AZZURA AND NICHOLAS MULLER AND JOHN J. RICE AND JAMES W. RIGGS AND HAROLD M. SHALON AND MARY ANN STEWART AND MARTIN F. HORN AND RAYMOND P. MCGINNIS AND WARDEN DONALD VAUGHN.



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

  MEMORANDUM AND ORDER

Defendants have filed a motion to dismiss this civil rights action for failure to state a claim upon which relief may be granted for failure to train and under the "state created danger" theory of liability.*fn1 For the reasons which follow, we grant defendants' motion and dismiss this action in its entirety.

History of the Case

This case tragically arose on the night of May 6, 1995 when Ippolito "Lee" Gonzalez, a Franklin Township, NJ police officer, was shot and killed during a routine traffic stop by one Robert "Mudman" Simon, a longtime member of the "Warlocks" motorcycle gang and a recent parolee from the Pennsylvania prison system. With the permission of the parole and prison authorities in Pennsylvania and New Jersey, Mr. Simon had relocated to Williamstown, NJ upon his release from the State Correctional Institution at Graterford, PA.*fn2 Plaintiffs are Officer Gonzalez' brother and sister-in-law, his niece and nephew and the owners of the Williamstown trailer park to which Simon had moved upon his prison release.*fn3

Plaintiffs contend that Defendants, who are alleged to be the policy-making officials of the Pennsylvania Board of Probation and Parole ("PBP & P"), the Pennsylvania Department of Corrections ("PDOC") and the Warden of the State Correctional Institution at Graterford ("SCI-Graterford"), knew or should have known, inter alia:

  (1) that the policies, practices, procedures and
  customs of their agencies were inherently deficient,
  insufficient and dangerous to the public in that they
  permitted violent, unrehabilitated and dangerous
  criminals to be released from prison prior to the
  expiration of their sentences and that violent
  criminals who were released early from their
  sentences continued their violent criminal behavior
  including homicides, upon release (Pl's Complaint,
  ¶¶ 18-23);
  (2) that Warlock motorcycle gang members had a
  propensity toward violence, particularly toward
  police officers and that improperly paroled Warlocks
  had committed violent crimes, including murder, upon
  parole (Pl's Complaint, ¶¶ 24-28);
  (3) that Robert Simon was especially dangerous, in
  light of his psychological profile (psychopath), his
  prior criminal history (convicted of murder of young
  woman who refused to be gang raped by Warlock
  members, suspected of murdering another inmate, 49
  misconducts during incarceration, drug use and drug
  sales), his continued affiliation with the Warlocks
  and continued drug use, and the opinion of his
  sentencing judge that he was one of the most
  dangerous individuals he had ever seen, had no
  respect for human life and that it would only be a
  matter of time before he killed again, (Pl's
  Complaint, ¶¶ 29-41).

It is thus the thrust of the Gonzalez Plaintiffs' complaint that in authorizing Simon's release and permitting him to take up residence in Williamstown, NJ, "[d]efendants created a specific danger to Plaintiff/Decedent and all police officers in and around Monroe and Franklin Townships . . .", while the Mihalick Plaintiffs aver that they were "placed in danger by allowing Simon's parole and by failing to properly inform [them] of [his] violent history." (Pl's Complaint, ¶¶ 100, 120).

Standards Governing Rule 12(b)(6) Motions to Dismiss

It has long been held that in reviewing a motion to dismiss for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6), the court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record and must accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn after construing them in the light most favorable to the non-movant. Pearson v. Miller, 988 F. Supp. 848, 852 (M.D.Pa. 1997), citing, Jordan v. Fox, Rothschild, O'Brien and Frankel, 20 F.3d 1250, 1261 (3rd Cir. 1994). The court need not, however, credit a complaint's bald assertions or legal conclusions. In Re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-1430 (3rd Cir. 1997), citing Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996). Dismissal is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Alexander v. Whitman, 114 F.3d 1392, 1398 (3rd Cir. 1997).

Discussion

A. Plaintiffs' State-Created Danger Claims.

Although as a general rule, the state has no affirmative obligation to protect its citizens from the violent acts of private individuals, the courts have recognized two exceptions to this rule. Morse v. Lower Merion School District, 132 F.3d 902, 907 (3rd Cir. 1997), citing D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369-73 (3rd Cir. 1992) (en banc), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995), cert. denied, 516 U.S. 1118, 116 S.Ct. 924, 133 L.Ed.2d 853 (1996). Thus, liability can arise under Section 1983 for acts committed by a private citizen if: (1) the danger or risk of harm which led to plaintiff's injury was created by the state (the state created danger exception); or (2) the state entered ...


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