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