The opinion of the court was delivered by: Nealon, District Judge.
Presently before the court is a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed on behalf of the
defendants on September 5, 2000. (Doc. 12). The defendants filed
a brief in support of the motion, along with exhibits, on
September 19, 2000. (Docs. 14 & 15 respectively). The plaintiff
thereafter submitted a brief in opposition to the motion on
October 12, 2000 (Doc. 16), to which the defendants replied on
October 27, 2000. (Doc. 18). Consequently, the motion is ripe
for consideration by the court. For the following reasons, the
defendants' motion will be granted, and the plaintiff's
complaint will be dismissed.
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
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
"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.
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
(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