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WHITE v. CITY OF PHILADELPHIA

October 27, 2000

MARLENE WHITE, ADMINISTRATRIX OF THE ESTATE OF NADINE WHITE, DECEASED; AND MARLENE WHITE, INDIVIDUALLY AND IN HER OWN RIGHT, AND DONTAE BENN, A MINOR BY HIS P/N/G/, DARO LARUE BENN, PLAINTIFFS,
V.
CITY OF PHILADELPHIA, BRUCE WRIGHT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE OFFICER, CITY OF PHILADELPHIA, OMHARR JENKINS AND IN HIS OFFICIAL CAPACITY AS POLICE OFFICER, CITY OF PHILADELPHIA, JOHN DOE A THROUGH Z, WHOSE NAMES ARE CURRENTLY UNKNOWN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS POLICE OFFICERS, CITY OF PHILADELPHIA, DEFENDANTS.



The opinion of the court was delivered by: Jan E. Dubois, J.

  MEMORANDUM

I. INTRODUCTION

This case arises out of the refusal by officers of the Philadelphia Police Department to make a forcible entry into the apartment of Nadine White in response to a 911 call placed on May 25, 1998. Plaintiffs allege in their complaint that Jeffrey Sessoms was in Nadine White's apartment when the police arrived and that he murdered her after they left the scene. Plaintiffs brought suit under 28 U.S.C. § 1983 and state law. Jurisdiction is based on 28 U.S.C. § 1331 and 1367.

Plaintiff Marlene White is both the administratrix of Nadine White's estate and Nadine White's mother; she brought suit both on behalf of the estate and individually and in her own right.*fn1 Plaintiff Dontae Benn is Nadine White's minor son; plaintiffs' complaint does not specify whether he brought suit individually or on his mother's behalf.*fn2 Named as defendants are the City of Philadelphia and Philadelphia Police Officers Bruce Wright ("Officer White") and Omharr Jenkins ("Officer Jenkins") (referred to collectively as "Officers").*fn3

Currently before the Court is defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For the following reasons, defendants' motion will be granted and the complaint will be dismissed as to all defendants.

II. BACKGROUND

The facts of this case are undeniably tragic. Plaintiffs allege that on May 25, 1998, Officer Wright, Officer Jenkins and possibly other John Doe Officers were dispatched to the home of Nadine White in response to a 911 call placed by Nadine White's neighbors. The neighbors placed the call at approximately 4:21 a.m. in response to screaming from Nadine White's apartment. Allegedly, at the time the Officers arrived at the apartment, Nadine White and Jeffrey Sessoms, her murderer, were inside the apartment. According to the complaint, when the Officers arrived at the scene, they knocked on the apartment door. No one responded, and hearing nothing, the Officers refused to make a forcible entry. Plaintiffs aver that Mr. Sessoms murdered Nadine White after 4:21 a.m. and that she was still alive when the Officers refused to force entry into her apartment. See Complaint 3 & 23.

Based on these facts, plaintiffs assert two claims pursuant to 42 U.S.C. § 1983, one against the Officers for a violation of Nadine Wright's right not to be deprived of life or liberty without due process of law in violation of the Fourteenth Amendment (Count 1); and one against the City of Philadelphia for a violation of Nadine White's rights as a result of its policies and practices in failing to train and supervise its police officers (Count Two). Plaintiffs also assert two state law claims against the Officers — a wrongful death action (Count Three); and a survival action (Count Four).

III. STANDARD OF REVIEW

Rule 12(b)(6) of the federal rules of civil procedure provides that a defense of "failure to state a claim upon which relief can be granted" may be raised by motion in response to a pleading. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). The court must only consider those facts alleged in the complaint in considering such a motion. See ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

IV. DISCUSSION

A. Claims Against the Officers Under 42 U.S.C. § 1983

Plaintiffs bring two claims pursuant to 42 U.S.C. § 1983. Section 1983 provides, in relevant part, as follows: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any . . . person . . . 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 redress. . . ." 42 U.S.C.A. 1983 (West Supp. 2000). Section 1983 does not create substantive rights; in order to state a claim under 1983, plaintiffs must demonstrate a violation of a right created by the Constitution or federal law. See, e.g., Morse v. Lower Merion School District, 132 F.3d 902, 906-7 (3d Cir. 1997) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2695 n. 3, 61 L.Ed.2d 433 (1979)).*fn4

State actors do not have an affirmative obligation to protect individual citizens from private violence. As the Supreme Court wrote in DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989), "the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." There are, however, two exceptions to this rule — (1) cases in which there exists a "special relationship" between the state and an individual such that the state owes the individual an affirmative duty to protect the health and safety of such individual, see DeShaney, 489 U.S. at 197-201; and (2) cases in which the state has created a danger that causes harm to an individual. See Morse v. Lower Merion School District, 132 F.3d 902, 907 (3d Cir. 1997); Kneipp v. Tedder, 95 F.3d 1199, 1204-05 (3d Cir. 1996). Plaintiffs in this case bring suit under the second exception, on a state created danger theory. The Court will first analyze plaintiffs' claims on behalf of Nadine White; the Court will then turn to plaintiffs' claims in their individual capacities.

1. The State Created Danger Theory of Liability

In DeShaney, the Supreme Court considered whether the state had an affirmative obligation to protect Joshua DeShaney, a chronically abused child, from his abusive father when the state social services agency was aware that Joshua was in danger. DeShaney, 489 U.S. at 191-94, 109 S.Ct. at 1001-03. Concluding that an affirmative duty attaches in very limited circumstances, the Supreme Court, in rejecting plaintiffs' claims, held that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201, 109 S.Ct. at 1006.

Based on this language from DeShaney, the Third Circuit articulated the state created danger theory of liability, which was applied for the first time in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). In Kneipp, the Third Circuit identified four prerequisites to liability when suit is brought on a state created danger theory. To establish a viable claim under this theory, the plaintiff must show:

(1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actors acted in willful disregard for the safety of the plaintiff;
(3) there existed some relationship between the state and the plaintiff; and
(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.

95 F.3d 1199, 1208 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)). Applying this four-factor test (the "Mark test"), the Court concludes that the plaintiffs in this case have failed to allege facts sufficient to establish liability for a ...


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