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