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January 25, 2001


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



Plaintiff, Charles M. Pahler (Pahler), a Wilkes-Barre police officer, initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983 against the City of Wilkes-Barre (City); its Mayor, Thomas McGroarty (McGroarty); and its Chief of Police, William Barrett (Barrett), on June 26, 2000. (Doc. 1). Each of the individuals is sued individually and in their official capacities. The plaintiff has also invoked this court's supplemental jurisdiction under 28 U.S.C. § 1367(a) by filing a state law claim of negligence against each defendant. Id. at pp. 17-18.

The complaint reveals that the City of Wilkes-Barre has an Emergency Services Unit (ESU)*fn1 encompassed within its Police Department comprised of individuals who are specially trained to manage highly dangerous situations*fn2 arising in the city. Id. at ¶¶ 9, 10, 13. In addition to training, members of the ESU are issued special equipment for use and protection in such situations. Id. at ¶ 19. On July 10, 1998, a group of officers including the plaintiff, were called upon to take part in a raid of a suspected drug dealer's residence. Id. at ¶ 16. The ESU, however, was not utilized for the drug raid on that day. Id. at ¶ 21. During the course of the drug raid, plaintiff was struck and severely injured with buckshot from a shotgun of a fellow police officer who neglected to set the safety mechanism on the shotgun. Id. at 20. Although the ESU was not used in the raid, the individual who discharged the shotgun was a member of that unit. Id. at ¶ 21. Insofar as the plaintiff was not a member of the ESU, he was not trained for that unit, was not issued any special equipment, and was not briefed on the unit's tactics. Id. at ¶ 4. Up to and including that day, the plaintiffs normal duties were that of a patrol officer patrolling a specific area in a marked Department vehicle. Id. at ¶ 17.

Plaintiff avers that the defendants violated his Fourteenth Amendment right to due process by requiring him to participate in a high risk drug raid with officers who were not adequately trained in violation of department policy; by failing to utilize the ESU in the raid; and by failing to adopt a uniform procedure/policy for the mandatory use of the ESU during highly dangerous situations. (Doc. 16, p. 4). The individual defendants are not charged with directing or participating in this particular operation. They are accused of authorizing and permitting untrained personnel to perform in operations requiring ESU personnel contrary to statewide accepted standards for the utilization of such personnel. Id.


A court, in rendering a decision on a motion to dismiss, must accept the veracity of the plaintiffs allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). A court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The test in reviewing a motion to dismiss for failure to state a claim is whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief. See Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation omitted). Additionally, a court must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Indep. Enters., Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997).

1. Constitutional Claims Under 42 U.S.C. § 1983

To state a viable claim pursuant to 42 U.S.C. § 1983, plaintiff must allege that a person, acting under color of state law, deprived or knowingly caused the deprivation of rights secured by the Constitution.*fn3 42 U.S.C. § 1983. "When a public employee asserts a defense of qualified immunity, however, the court must determine as a threshold matter whether the defendant is entitled to that defense."*fn4 D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d Cir. 1992), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "Until this threshold immunity question is resolved, discovery should not be allowed." Harlow, 457 U.S. at 818, 102 S.Ct. 2727. Generally, governmental officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. 2727. "`A necessary concomitant to the determination of whether the constitutional right asserted by the plaintiff is clearly established at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.'" D. R., 972 F.2d at 1368 (emphasis in original) (quoting Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). "Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Adhering to this precedent, the predicate question is whether the plaintiff has alleged a deprivation of any right secured by the constitution. D. R., 972 F.2d at 1368.

Pahler's claim under section 1983 rests on the substantive component of the due process clause of the Fourteenth Amendment. In an effort to demonstrate a constitutional deprivation, the plaintiff has identified two legal theories to which his factual allegations are addressed: (1) state created danger; and (2) failure to train. Each will be addressed in turn.

a. State Created Danger

In general, state actors have no affirmative obligation to protect citizens from injuries caused by others or themselves. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). This general rule is subject to two exceptions: (1) the special relationship exception, which allows the plaintiff to recover when the state enters into a special relationship with a particular citizen and fails to protect the health and safety of the citizen to whom it owes an affirmative duty; and (2) the state created danger exception, which allows the plaintiff to recover when a state actor creates a danger that causes harm to an individual. Morse v. Lower Merion School District, 132 F.3d 902, 907 (3d Cir. 1997). Here, the plaintiff advances the latter exception.

The United States Court of Appeals for the Third Circuit has adopted the "state created danger" theory as a "viable mechanism" for imposing a constitutional violation under 42 U.S.C. § 1983. Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996). In order to find someone constitutionally liable under such theory, four elements must be satisfied:

(1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actor acted in willful disregard for the safety of the plaintiff;*fn5
(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 harm to occur.

Id. at 1208. Subsequent to the Kneipp decision, the United States Supreme Court, in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), applied the "shocks the conscience" standard to all substantive due process cases involving abusive executive action. In Lewis, the Supreme Court had to decide whether a police officer violated "the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender." Id. at 836, 118 S.Ct. 1708. Although the Court held that the shock the conscience standard would apply, it also held that the degree of wrongfulness necessary to reach that standard varied under the circumstances of the case. The Supreme Court emphasized that "the measure of what is conscience shocking is no calibrated yard stick." Id. at 847, 118 S.Ct. 1708. Moreover, "preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking." Id. at 850, 118 S.Ct. 1708. In reaching this conclusion, the Court commented that:

The phrase [due process of law] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in light of other considerations, fall short of such denial.

Id. (alteration in original) (quoting Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942)). To illustrate this reasoning, the Court compared the position of prison officials, who risk liability when they act with deliberate indifference to a prisoner's medical needs, to that of prison riots. In differentiating the two, the Court noted:

As the very term `deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practical, an in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare. . . . But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner's claim arises not from normal custody but from response to a violent disturbance. `[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used. . . . In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and ...

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