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WHITE v. CITY OF PHILADELPHIA

United States District Court, Eastern District of Pennsylvania


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 violation of Nadine White's rights based on a state created danger theory.

a. Foreseeable and Fairly Direct Injury

Plaintiffs allege that the Officers in this case "had every reason to believe that Nadine White's life was in extreme danger and that entry was necessary to save her life." Complaint 24. The Officers responded to a 911 call in which neighbors reported a "person screaming." Complaint 15. Once there, the neighbors directed the Officers to Nadine White's door and told them that they had heard screaming and a dog barking. Complaint 16. Based on these allegations, the Court concludes, as a matter of law, that Nadine White's injuries were not foreseeable and fairly direct.

In Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir. 1997), the Third Circuit addressed the limits of foreseeability under the state created danger exception. In Morse, plaintiffs alleged constitutional injury resulting from the murder of a day care worker, Diane Morse, by an individual with a history of mental illness. Ms. Morse was shot and killed in a classroom that her murderer entered via an open rear entrance to the school building. Plaintiffs alleged that her death was caused by defendants' leaving the rear entrance open to accommodate workers who were engaged in construction projects around the school. The complaint also included allegations that defendants were aware of the potential danger presented by the open door and thus created an opportunity for the attack on Ms. Morse that would not otherwise have existed. Analyzing the facts under the state created danger theory of liability, the Third Circuit rejected the claim, concluding that "the tragic harm which ultimately befell Diane Morse was too attenuated from defendants' actions to support liability." Id. at 908.

Similarly, in Estate of Burke v. Mahoney City, No. 99-1357 (3d Cir. Mar. 31, 2000) (unreported),*fn5 the Third Circuit concluded that the harm plaintiff allegedly suffered was not foreseeable. The claim in Burke arose out of a "drinking party." See Estate of Burke v. Mahoney City, 40 F. Supp.2d 274 (E.D.Pa. 1999), aff'd, 213 F.3d 628 (3d Cir. 2000). Plaintiff alleged that a disturbance at the party resulted in two intoxicated guests, Beninsky and Buscavage, being ejected from the party. Id. at 276. After they were ejected, Beninsky approached two police officers and informed them that he and Buscavage had been assaulted and that the police should arrest the individuals responsible. Id. at 277. When the police informed Beninsky that there was nothing they could do about his complaint, plaintiff alleged that Beninsky became angry and stated "If you don't do your job, I'll take care of it myself." Id. (quoting Pl.'s Br. at 9). In addition, the plaintiff contended that either Beninsky or Buscavage*fn6 had stated: "`I'm going to kill ya's . . . blow your f'ing heads off." Id. (quoting Defs.' Br. at 3). Beninsky returned to the party shortly thereafter and shot and killed Burke and injured several others. Id.

The plaintiff in Burke contended that the officers' knowledge of the threats and their failure to take appropriate action created a dangerous situation that was actionable under a state created danger theory of liability. Id. at 279. The District Court and the Third Circuit disagreed. On the issue of foreseeability, the Third Circuit agreed with the District Court's conclusion that "`vacuous threats by angry and intoxicated young adults are far from uncommon' and do not provide strong grounds for foreseeability." Burke, No. 99-1357, at 7 (3d Cir. Mar. 31, 2000) (quoting Burke, 40 F. Supp.2d at 281). Further, the Third Circuit wrote that it did not believe that Beninsky's returning to the party to shoot Burke was a foreseeable consequence of the police officers' alleged conduct. Burke, No. 99-1357 (3d Cir. Mar. 31, 2000).

Just as "vacuous threats by angry and intoxicated young adults" are common, so are domestic disturbances — including screaming and barking dogs. In this case, it was not foreseeable that failure to respond to screaming would result in murder.*fn7 As such, the Court concludes that plaintiffs have failed to allege facts sufficient to meet the first prong of the Mark test.

b. Culpability

Mark's second prong — whether the state actor acted in willful disregard for the safety of the plaintiff — requires that the state actor's conduct "shock the conscience." See County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1240, 140 L.Ed.2d 1043 (1998) (holding that executive action must "shock the conscience" to find liability in a due process challenge); Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) (applying the "shocks the conscience" test to a substantive due process challenge to executive action); Cannon v. City of Philadelphia, 86 F. Supp.2d 460, 469 (E.D.Pa. 2000) (concluding, based on Lewis and Miller, that "the actions of the state actor must shock the conscience" to trigger liability under 1983 based on a state created danger theory).

As the Supreme Court explained in Lewis, action that shocks the conscience "in one environment may not be so patently egregious in another, and [the Court's] concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking." 523 U.S. at 850, 118 S.Ct. at 1718-19. For example, the Lewis Court drew a sharp distinction between the deliberate manner in which decisions in the prison setting are normally made and the quick decision making required by a police officer involved in a high speed chase. See id. at 851, 118 S.Ct. at 1719.

The case before this Court falls somewhere between the two extremes compared in Lewis. As the Supreme Court has observed, "the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs." Id. at 853, 118 S.Ct. at 1720. The Officers in this case were similarly facing conflicting responsibilities: on the one hand, according to the complaint, the Officers were being pressured by neighbors to break the door down; on the other hand, the Officers' reluctance to invade a seemingly peaceful residence pulled in the other direction. Under these circumstances, the Court concludes as a matter of law that the Officers' behavior was not conscience-shocking.

c. The Foreseeable Plaintiff Requirement

The third prong of the Mark test — the existence of a relationship between the state and plaintiff — permits a finding of liability only if "the victim is `known and identified,' and not `simply a member of the greater public.'" Morse, 132 F.3d at 906 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 (3d Cir. 1995)). Described by the Third Circuit as the "foreseeable plaintiff" requirement, see Morse, 132 F.3d at 912 n. 11, there must have been a particular danger to the victim of the resulting harm, "`contemplat[ing] some contact such that the plaintiff was a foreseeable victim of the defendant's acts in a tort sense.'" Id. at 912 (quoting Kneipp, 95 F.3d at 1209 n. 22).

Because the Court concludes the injury suffered by Nadine White was not foreseeable, the Court does not view her as a foreseeable plaintiff. On this issue, plaintiffs contend that concern for Nadine White's safety precipitated the 911 call her neighbors placed; her neighbors specifically identified her apartment as the site of a potential danger. See Complaint 1, 14, 16, 23, 31. Plaintiffs argue that, based on these facts, the police should have foreseen that their actions could cause danger to the occupant of the apartment. The Court disagrees. As there was no foreseeable injury, there was no "contact" between the defendants and decedent — Nadine White could not have been a "foreseeable victim of the defendant's acts in a tort sense." Morse, 132 F.3d at 912.

d. Creating an Opportunity that Would not Otherwise Have Existed

The fourth prong of the test applied in Mark requires that "the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur." Kneipp, 95 F.3d 1199, 1208 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). Plaintiffs allege that as a result of the Officers' failure to intervene, the "deadly danger that Nadine White faced was increased." Complaint 4. Plaintiffs further contend that this failure "caused her murder by giving the killer the opportunity to hold her hostage and commit various criminal acts which caused her death." Id. at 24.

These allegations, when viewed in the light most favorable to the plaintiff, do not set forth facts sufficient to meet the requirements of the fourth prong of the Mark test. As discussed in Henderson v. City of Philadelphia, to satisfy this fourth factor, the "court must determine . . . whether the officers' acts or omissions `placed' [the victim] in greater danger than he already faced such that the state can be said to have `created' a danger to [the victim]." Henderson v. City of Philadelphia, 1999 WL 482305, at *11 (E.D.Pa. July 12, 1999), aff'd, 216 F.3d 1076 (3d Cir. 2000). See also Estate of Burke v. Mahoney City, 40 F. Supp.2d 274, 282 (E.D.Pa. 1999) (dismissing 1983 claim brought against municipality and individual officers upon deciding that the state created danger exception did not apply because, inter alia, defendants did not undertake the "requisite affirmative acts" necessary to satisfy the fourth prong of the Mark test), aff'd, 213 F.3d 628 (3d Cir. 2000).

In Kneipp v. Tedder, the first case in which the Third Circuit found a substantive due process violation under the state created danger exception, the court concluded that the police affirmatively placed Samantha Kneipp in jeopardy. Kneipp, 95 F.3d 1199 (3d Cir. 1996). On the night Samantha Kneipp was injured, Police Officer Wesley Tedder stopped her and her husband, Joseph Kneipp, while they were walking home from a bar near their residence. According to her husband, Samantha was visibly intoxicated and unable to walk without assistance. Shortly after they were stopped, other police officers arrived and Joseph asked one of the officers if he could return home to the babysitter who was watching his son. The officer replied in the affirmative and Joseph left the scene. After Joseph left, Officer Tedder sent Samantha home alone; she then fell to the bottom of an embankment where she suffered hypothermia and subsequent anoxia as a result of her exposure to the cold. Based on these facts, the Third Circuit concluded that the officers had affirmatively acted to create a dangerous situation: "[T]he police officers intervened to cut off Samantha's private source of protection by giving Joseph permission to go home alone, thereby increasing the danger that Samantha would suffer harm in her visibly intoxicated state when they abandoned her." Id. at 1210.

Unlike the situation in Kneipp, where officers cut Samantha Kneipp off from her private source of aid, the district court in Henderson did not find a state created danger where an individual's private source of rescue was still available. See Henderson v. City of Philadelphia, 1999 WL 482305. The case arose out of an incident involving the involuntary commitment of Salim Henderson, age 20, a diagnosed schizophrenic, to a mental health institution. To effect his commitment, Donna Henderson, Salim Henderson's mother, called 911 to have her son transported to Misericordia Hospital; two officers were sent to her home.

As the officers were reviewing his commitment papers, Salim Henderson stated that he did not want to go to the hospital and told the officers that he had to go upstairs for something. Donna Henderson and the police did not follow him upstairs. Once Salim Henderson was "out of earshot," Donna Henderson informed the police that she was concerned that Henderson might jump. Id. at *2. Three to four minutes later, Salim Henderson jumped from the second-story window; he suffered severe and permanent injuries as a result of the fall. Plaintiffs brought suit under 1983, alleging that the officers violated Salim Henderson's substantive due process right to bodily integrity by failing to take him into custody and thus preventing him from injuring himself.

Based on these allegations, the district court in Henderson concluded that the plaintiffs had failed to establish that the officers created a situation that increased any risk of harm or subjected the plaintiffs to risk that did not exist before the officers acted. Henderson, at *11. Comparing the case to Kneipp, where police officers interfered with Joseph Kneipp's attempt to take his intoxicated wife home safely, the court observed that the officers did not cut Henderson off from his private source of aid: "[T]he officers in this case exerted no control over Henderson's environment and did not cut him off from the assistance of his mother." Id. at *11-12.

The Officers in the instant case likewise did not exert any control over Nadine White's environment or interfere with any source of private assistance. Rather, the Officers "simply let the events unfold as they stood idly by[]." Burke, 40 F. Supp.2d at 282. In response to the 911 call placed by Nadine White's neighbors, the Officers knocked on Nadine White's door several times. Complaint 17. Upon hearing no response, the Officers refused the neighbors' request to break down the door and left the scene. Id. at 17-18. As set forth in the complaint, the Officers' investigation of the call lasted less than five minutes. Id. at 18.

Plaintiffs have not alleged in their complaint facts sufficient to meet the fourth prong of the Mark test with respect to the claims asserted on behalf of Nadine White. The Officers did nothing to place Nadine White in jeopardy — they only failed to protect Nadine White from private violence. Such inaction does not create liability.

Plaintiffs have failed to allege in their complaint facts sufficient to meet all four requirements of the Mark case. Thus, the Court concludes that plaintiffs have not stated a claim on Nadine White's behalf upon which relief can be granted against defendant Officers under the state created danger theory of liability. The Court now turns to plaintiffs' individual claims.

2. Plaintiffs' Individual Capacity Claims

Plaintiffs Marlene White, Nadine White's mother, and Dontae Benn, Nadine White's minor son, allege generally that they seek redress for the violation of "their rights." Complaint 4. More specifically, they assert that they have been deprived of the rights of "motherhood, aid, comfort, support, familial companionship, parenthood, and care. . . ." Complaint 29, and that as a result of defendants' actions, they suffered and continue to suffer loss of "her income, services, protection, care, assistance, society, companionship, comfort and guidance, funeral and burial expenses. . . ." Complaint 35. As explained supra, the Court determined that plaintiffs failed to state a cognizable constitutional claim on Nadine White's behalf. It reaches the same conclusion as to plaintiffs' individual capacity claims — plaintiffs have failed to allege facts sufficient to establish a due process violation on a state created danger theory based on a violation of their individual constitutional rights. This conclusion is based on an analysis of the four Mark factors applied to the individual capacity claims.

a. Foreseeable and Fairly Direct Injury

Applying the state created danger test in Solum v. Yerusalim, the Third Circuit addressed the question whether parents could bring a due process claim for loss of association with their child, who was killed in an auto accident, allegedly as a result of poorly maintained roads. As the court observed, even where injury to an individual is foreseeable, it does not necessarily follow that injury suffered by the parents of the injured party in the form of a loss of an "assumed constitutional right to associate" with that child is foreseeable. See Solum v. Yerusalim, No. 99-1607 (3d Cir. Mar. 8, 2000) (unreported)*fn8; Solum v. Yerusalim, 1999 WL 395720, at *4 (E.D.Pa. June 17, 1999), aff'd, 211 F.3d 1262 (3d Cir. 2000). As in Solum v. Yerusalim, this Court, in considering the first Mark factor, concludes that interference with an "assumed constitutional right to associate" suffered by Marlene White and Dontae Benn was not a foreseeable consequence of defendants' actions.

b. Culpability

As discussed supra, under the second Mark factor, actions undertaken by a state official must shock the conscience to establish a claim for a substantive due process violation via section 1983. Because the defendants could not have foreseen that Marlene White and Dontae Benn would suffer a constitutional injury, the Officers could not, as a matter of law, demonstrate the culpability required to establish liability under the state created danger exception. The Third Circuit has explained that "the notion of deliberate indifference contemplates a danger that must at least be foreseeable." Morse, 132 F.3d at 910. As the "shocks the conscience" standard requires a greater degree of culpability than the deliberate indifference standard, the Court concludes that plaintiffs cannot establish that the Officers' actions were conscience shocking in the absence of foreseeable injury.

c. The Foreseeable Plaintiff Requirement

The plaintiffs in this case do not qualify in their individual capacities as foreseeable plaintiffs. As discussed supra, the third prong of the Mark test "`contemplat[es] some contact such that the plaintiff was a foreseeable victim of the defendant's acts in a tort sense.'" Morse, 132 F.3d at 912 (quoting Kneipp, 95 F.3d at 1209 n. 22). As one district court has explained, "[i]f the defendant does not have specific knowledge of the particular plaintiff, no relationship imposing liability exists." Solum v. Yerusalim, 1999 WL 395720, at *5 (E.D.Pa. June 17, 1999), aff'd, 211 F.3d 1262 (3d Cir. 2000). Here, there was no meaningful contact between the Officers and Marlene White and Dontae Benn — the only relationship plaintiffs have with defendant Officers is based on plaintiffs' relationship with Nadine White. The Court concludes the plaintiffs were not foreseeable victims of the Officers' acts based on this attenuated relationship. See id.

d. Creating an Opportunity that Would not Otherwise Have Existed

Finally, as discussed above, with respect to the fourth prong of the Mark test, the Court concludes that the Officers did not create an opportunity for harm to occur to Nadine White — the Officers simply let events unfold as they stood by. See Burke, 40 F. Supp.2d at 282. From this conclusion, it follows that the Officers did not create an opportunity for injury to be inflicted on Marlene White and Dontae Benn as injuries suffered in their individual capacities flow from the private violence inflicted on Nadine White by Jeffrey Sessoms. Thus, plaintiffs have not alleged facts in their complaint sufficient to meet the fourth prong of the Mark test.

Plaintiffs have failed to allege in their complaint facts sufficient to meet all four requirements of the Mark case with respect to their individual capacity claims. Thus, the Court concludes with respect to such claims that plaintiffs have failed to state a claim upon which relief can be granted against defendant Officers under the state created danger theory of liability.

B. Qualified Immunity

Having concluded that the plaintiffs have failed to state a claim upon which relief can be granted, the Court will now turn to the issue of qualified immunity. It is well settled that government officials are entitled to a defense of qualified immunity when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would not have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Because qualified immunity turns on whether a constitutional right was clearly established, the threshold inquiry is whether plaintiffs allege a cognizable constitutional injury. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)); Estate of Burke v. Mahoney City, 40 F. Supp.2d 274, 283 (E.D.Pa. 1999), aff'd, 213 F.3d 628 (3d Cir. 2000). As discussed in Part IV(A), the Court does not conclude that plaintiffs allege a violation of the Fourteenth Amendment that is actionable under 1983. Failure to establish a constitutional violation clearly entitles the Officers to qualified immunity. See In re City of Philadelphia Litig., 158 F.3d 711, 719 (3d Cir. 1998).

Even if the Court were to find that plaintiffs' complaint alleges facts sufficient to prove the deprivation of a constitutional right, the Court concludes that the constitutional rights claimed on Nadine White's behalf were not clearly established. As the Third Circuit has explained, "the courts are required to conduct more than a generalized inquiry into whether an abstract constitutional right is implicated." In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir. 1998). "The level of specificity required must establish that the contours of the constitutional right alleged are sufficiently clear that a reasonable official would understand that his actions violate that right." Id. See Bartholomew v. Commonwealth of Pennsylvania, 221 F.3d 425, 428-29 (3d Cir. 2000) (concluding that constitutional rights must be established with specificity in order to be considered "clearly established").

In this case, plaintiffs generally allege that the Officers violated Nadine White's Fourteenth Amendment due process rights, invoking her rights to life and liberty. Complaint 25, 33-35. In contrast, the cases in which officers have been found liable on a state created danger theory have "narrowly delineated the situations under which state actors have an affirmative duty to act." Burke, 40 F. Supp.2d at 284. See also Kneipp, 95 F.3d at 1209-11; Morse, 132 F.3d at 908-10. As of May 1998, the time of the constitutional violation alleged in this case, there were no cases in which a constitutional deprivation had been found based on similar facts. The Court thus does not conclude that the right to be rescued by the police in response to a 911 call under the facts alleged in the complaint was clearly established under the Fourteenth Amendment. Because the right was not clearly established, the Court concludes that the constitutional right alleged in this case is not one about which a reasonable officer would have known. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d 396.

In addition, even if the Court assumes, without deciding, that plaintiffs had an individual constitutional right to associate with Nadine White, the defendant Officers did not violate that right, as discussed in Part IV(A)(2), supra. The Court thus holds that defendant Officers are entitled to qualified immunity as a matter of law. See In re City of Philadelphia Litig., 158 F.3d 711, 719 (3d Cir. 1998).

C. Claims Against the City of Philadelphia Under 42 U.S.C. § 1983

Plaintiffs assert claims against the City of Philadelphia ("the City") for failing to adopt and implement policy regarding the proper handling 911 calls and failing to train its police officers in the proper response to such calls. Under Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality may only be held liable under 1983 where the municipality itself causes a constitutional violation. To establish Monell liability, a plaintiff must "`identify the challenged policy, [practice or custom,] attribute it to the city itself, and show a causal link between execution of the policy, [practice or custom] and the injury suffered.'" Fullman v. Philadelphia Int'l Airport, 49 F. Supp.2d 434, 445 (E.D.Pa. 1999) (quoting Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). Furthermore, the plaintiff must show deliberate indifference on the part of the municipality by "demonstrat[ing] by specific scienter-like evidence that the [municipality] established or maintained [a] policy, practice or custom with deliberate indifference to the rights of citizens with whom the police would come into contact." Martin v. City of Philadelphia, 2000 WL 105210, at *9 (E.D.Pa. July 24, 2000).

As an initial matter, the Court must examine the issue of whether municipal liability is dependent upon a finding of liability on the part of an individual state actor. The Supreme Court has held that a municipal entity cannot be liable under the Fourth Amendment without a finding of liability on the part of an individual officer. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). The Third Circuit, however, has distinguished Heller from a situation in which the constitutional claims brought against individual officers are separate and independent from the claims brought against a municipality. See Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) (Fagan I); Cannon v. City of Philadelphia, 86 F. Supp.2d 460, 472-75 (E.D.Pa. 2000). Unlike Heller, where the city was sued solely on the theory that the city was responsible for an individual officer's actions, Heller, 475 U.S. at 799, 106 S.Ct. at 1573, the Fagan I court concluded that plaintiffs' claims were viable as they asserted "separate, independent constitutional claims" against the officers and the city. Fagan I, 22 F.3d at 1292.

In this case, plaintiffs allege separate, independent claims against the City, claiming that the City was deliberately indifferent in its (1) failure to adopt and implement a 911 policy to handle Priority 1 calls and (2) failure to train.*fn9 Complaint ¶ 26. For the following reasons, the Court concludes that the plaintiffs have not alleged facts sufficient to state a claim against the City under 1983.

Regardless of the theory under which suit is brought against the City, the first inquiry in any 1983 claim "is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994). See also Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261 (1992) (identifying two issues that must be analyzed in any 1983 claim — "(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation").

In their claim against the City, plaintiffs generally allege substantive due process violations, asserting that Nadine White was deprived of her rights as secured under the Fourteenth Amendment. As the Court determined above, this claim fails to identify a cognizable constitutional injury because the Officers' conduct did not satisfy the four part test set forth in Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). In addition, even if the Court assumes that the City has a policy or custom of providing poor 911 service or failing to train officers to perform adequate rescue services, this failure did not inflict constitutional injury — substantive due process under the Fourteenth Amendment does not secure a right to rescue services under the facts of this case. See Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 379 (E.D.Pa. 1995) ("[T]he Due Process Clause does not impose an affirmative obligation on the state to provide the public with adequate emergency rescue services."), aff'd, 91 F.3d 125 (3d Cir. 1996); see also Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir. 1988); Mendoza v. City of Philadelphia, 2000 WL 633045 (E.D.Pa. May 9, 2000); Huston v. Montgomery County, 1995 WL 766308, at *3 (E.D.Pa. Dec. 28, 1995); cf. 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) (holding that "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"). In so ruling, this Court is mindful of the Supreme Court's "reluctan[ce] to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended." Collins, 503 U.S. at 125, 112 S.Ct. at 1068.

For the foregoing reasons, the Court concludes that plaintiffs have not identified in their complaint a cognizable constitutional right. In the absence of such a right, there can be no constitutional violation. Thus, plaintiffs have failed to state a 1983 claim upon which relief can be granted against the City based on allegations that the City violated Nadine White's substantive due process rights.

D. State Law Claims: Wrongful Death and Survival Actions

Under 28 U.S.C. § 1367, a district court may decline to exercise its supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction. . . ." 28 U.S.C.A. 1367(c)(3) (West Supp. 1999). In interpreting this provision, the Third Circuit has held that "where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendant state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so." Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).

The Court concludes that there is no affirmative justification to retain jurisdiction over plaintiffs' state law claims in this case. Because the Court will grant defendant's motion to dismiss as to the federal claims, the Court declines to exercise supplemental jurisdiction over plaintiffs' state law wrongful death and survival actions brought against the Officers in their individual capacities, and those claims will be dismissed without prejudice.

V. CONCLUSION

For the foregoing reasons, the Court will grant Defendants' Motion to Dismiss. An appropriate order follows.

ORDER

AND NOW, to wit, this 27th day of October, 2000, upon consideration of the Complaint (Document No. 1, filed May 24, 2000); Defendants' Motion to Dismiss (Document No. 4, filed June 16, 2000) filed on behalf of defendants City of Philadelphia, Police Officer Bruce Wright and Police Officer Omharr Jenkins; Plaintiffs' Opposition to Defendants' Motion to Dismiss Plaintiffs' Complaint (Document No. 6, filed July 31, 2000); and Defendants' Reply Memorandum of Law in Further Support of Their Motion to Dismiss (Document No. 7, filed Aug. 7, 2000), IT IS ORDERED that:

1. Defendants' Motion to Dismiss is GRANTED as to plaintiffs' claims under 42 U.S.C. § 1983 against Officers Bruce Wright, Omharr Jenkins, and John Doe A through Z, and those claims are DISMISSED WITH PREJUDICE;

2. Defendants' Motion to Dismiss is GRANTED as to plaintiffs' claims under 42 U.S.C. § 1983 against the City of Philadelphia and those claims are DISMISSED WITH PREJUDICE;

3. Plaintiffs' claims under Pennsylvania state law against Officers Bruce Wright, Omharr Jenkins, and John Doe A through Z, are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.


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