The opinion of the court was delivered by: Judge Conner
Presently before the court are the Dauphin County Defendants' and the Blust Defendants'*fn1 motions to dismiss the amended complaint. The parties dispute whether Plaintiffs sufficiently state claims for constitutional violations under three theories of liability pursuant to the Fourteenth Amendment's Due Process Clause and 42 U.S.C. § 1983 -- the state-created danger theory, the special relationship theory, and the policy, custom, or practice theory.
In addition, the Dauphin County Defendants assert immunity from Plaintiffs' state law claims under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 8541. The Blust Defendants contend that Plaintiffs fail to sufficiently allege a state negligence claim and, in the alternative, assert immunity under the Political Subdivision Tort Claims Act. Plaintiffs counter that Defendants' conduct falls within the willful misconduct exception to that Act, 42 Pa. Cons. Stat. Ann. § 8550, which Defendants argue does not apply here.
The threshold question before the court is whether Plaintiffs have set forth sufficient facts to establish § 1983 state-created danger, special relationship, or policy, custom, or practice claims against the Dauphin County or Blust Defendants. For the reasons that follow, the court concludes that Plaintiffs fail to state substantive due process claims under any of these theories. Plaintiffs' failure to establish any of their federal claims precludes the court's consideration of questions relating to the state law claims. Accordingly, the court will grant the Dauphin County and Blust Defendants' motions to dismiss.
I. Statement of Facts*fn2
On October 23, 2004, Defendant Alton Blakely, who was driving with a blood alcohol content of .159%, caused a head on collision with an automobile driven by Charlene Pendelton. (Doc. 7 ¶¶ 1, 55, 56.) Tragically, Charlene Pendelton died as a result of the accident and Plaintiffs Teah Pendelton, Amber Johnson, and Ernest Eden, were severely injured. (Id. ¶¶ 34, 39-41.)
Prior to and on the day of the accident, Blakely was an inmate at the Dauphin County Prison Work Release facility located at 919 Gibson Road, Harrisburg, Pennsylvania, serving time for a Driving Under the Influence of Alcohol (DUI) conviction. (Id. ¶¶ 45-46, 50.) Blakely had multiple DUI convictions and his driver's license was suspended. (Id. ¶ 46.)
Through the work release program, Blakely was permitted to leave the work release facility daily to work for Defendant Russell Blust and his businesses. (Id. ¶ 47.) Blakely returned to the work release facility at the conclusion of work each day. (Id.) The Dauphin County Defendants and Blust knew that, although Blakely's driver's license had been suspended, he regularly drove his white 1989 Cadillac to and from, and while out on, work release. (Id. ¶¶ 48, 50.) The Dauphin County Defendants and Blust were also aware that Blakely had ready access to money as a result of his employment. (Id. ¶ 48.)
On October 22, 2004, Blakely drove his Cadillac to the work release facility and parked in the work release parking lot when he returned for night lock down. (Id. ¶ 50.) One of the parole officers or supervisors on duty at the facility asked Blakely if he had been driving his car and Blakely said that he had. (Id. ¶ 51.) The officer responded, "Okay, I just wanted to see if you would tell me the truth." (Id.)
On October 23, 2004, Blakely exited the work release facility, got into his Cadillac, and drove to the 4 Aces Bar and Grill a/k/a 4 Aces Lounge (hereinafter "4 Aces") at 1105 Herr Street, Harrisburg, PA. (Id. ¶ 52.) While at the 4 Aces, Blakely was served alcohol while he was visibly intoxicated. (Id. ¶ 53.) The 4 Aces is the only establishment and the only location where Blakely consumed alcohol on October 23, 2004. (Id. ¶ 54.)
Blakely subsequently left the 4 Aces, with his stepson, Ernest Eden, in his car, and drove eastbound on Maclay Street at a high speed. (Id. ¶ 55.) Blakely crossed over the double yellow center lines and collided head on with a westbound vehicle driven by Charlene Pendelton, which held passengers Teah Pendelton and Amber Johnson. (Id.) As a result, Blakely was convicted of a DUI, as well as other offenses. (Id.)
Plaintiffs commenced this action by filing a complaint (Doc. 1) on October 6, 2006. Plaintiffs filed a seven-count amended complaint on October 20, 2006 (Doc. 7), alleging federal and state law claims against the Dauphin County and Blust Defendants, as well as state law claims against Blakely d/b/a Blakely Construction, and the 4 Aces and related individuals.*fn3 Plaintiffs alleged three claims arising from constitutional substantive due process violations under 42 U.S.C. § 1983, as well as state negligence, dram shop, wrongful death, and survival claims.*fn4
On December 14, 2006, the Dauphin County Defendants filed a motion to dismiss the amended complaint (Doc. 27). The Blust Defendants filed a motion to dismiss the amended complaint (Doc. 30) on December 20, 2006. Both motions have been briefed and are ripe for disposition.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that fail to assert a basis upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). Although the court is generally limited in its review to the face of the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice pleading rules do not require plaintiffs to allege affirmatively every aspect of their claims, but only to present sufficient facts to allow the opposing party to conduct discovery and prepare a defense. See Fed. R. Civ. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, courts should not dismiss a complaint 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." Id.; see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Under this liberal pleading policy, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
A. Official-Capacity Suit
The Dauphin County Defendants make a threshold argument that Plaintiffs' § 1983 claims should be dismissed as to the individual Defendants in their official capacities because the official-capacity claims merge into the claim against Dauphin County. Monell v. Department of Social Services provides that "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." 436 U.S. 658, 690 n.55 (1978). The Supreme Court has also stated that because of its holding in Monell, "[t]here is no longer a need to bring official-capacity actions against local government officials." Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). The Third Circuit has relied on the Supreme Court's interpretation of Graham and Monell as a basis for dismissing official-capacity claims against individual defendants. See Stacey v. City of Hermitage, 178 F. App'x 94, 100 (3d Cir. 2006) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Accordingly, the court will grant the Dauphin County Defendants' motion to dismiss with respect to the official-capacity suits against the individual Dauphin County Defendants.
B. 42 U.S.C. § 1983 Claims
Plaintiffs' amended complaint raises claims pursuant to three theories of liability under the Fourteenth Amendment and 42 U.S.C. § 1983.*fn5 Section 1983 provides protection where official action causes a "deprivation of rights protected by the Constitution." Monell, 436 U.S. at 690. However, § 1983 is not an independent source of substantive rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Rather, "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp, 95 F.3d at 1204; see also Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992) (Section 1983 "does not provide a remedy for abuses that do not violate federal law."). In order to establish a § 1983 claim, a plaintiff must demonstrate, first, the deprivation of a constitutional right, and, second, that a "person acting under the color of state law" is responsible for the alleged deprivation. Kneipp, 95 F.3d at 1204 (internal citations omitted); Collins, 503 U.S. at 120.
Plaintiffs base their § 1983 claims on alleged violations of the substantive due process protections of the Fourteenth Amendment. The Fourteenth Amendment's Due Process Clause limits the State's power to act, but does not place an affirmative obligation upon the State to act; it does not guarantee "certain minimal levels of safety and security." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). The Due Process Clause "confer[s] 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." Id. at 196.
"Although the general rule is that the state has no affirmative obligation to protect its citizens from the violent acts of private individuals, courts have recognized two exceptions to this rule." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997). One exception is the state-created danger theory. Id. The other is known as the "special relationship" exception. Id.
In Counts I, II, and III, Plaintiffs allege claims under each of these exceptions, as well as under a policy, custom, or practice theory. The court will discuss each in turn.
1. The Blust Defendants as State Actors
The Blust Defendants challenge their status as state actors in connection with one of the required elements of a state-related danger claim. The court will address this issue at the outset because it impacts all of Plaintiffs' § 1983 claims against the Blust Defendants. See Black v. Indiana Area Sch. Dist., 985 F.2d 707, 709 (3d Cir. 1993) (If the defendants are not state actors, "they can have no liability under 42 U.S.C. § 1983."). Plaintiffs do not allege that Russell Blust was a direct officer or employee of Dauphin County; they characterize him as an "agent and servant of Dauphin County and Work Release." (Doc. 7 ¶ 27.) Plaintiffs further allege that "[a]t all times material, [Blust] acted under color of state law and authority and within the course and scope of his employment." (Id.) The amended complaint also states that Russell Blust was the owner of three businesses that employed Blakely. (Id. ¶¶ 28-30.)
The court is not bound to accept unsupported conclusory statements as true. Papasan v. Allain, 478 U.S. 265, 286 (1986). Therefore, although Plaintiffs assert that Blust acted under color of law, the court will examine the factual allegations to determine whether they may support such a claim. The bulk of Plaintiffs' allegations make it clear that Blust was an owner of independent businesses and not an officer or employee of Dauphin County. There is no suggestion that the businesses were somehow associated with Dauphin County through anything other than Blust's participation as an employer in the work release program. Therefore, the court must determine whether the Blust Defendants' involvement with the work release program constitutes conduct that was "fairly attributable to" Dauphin County. Black, 985 F.2d at 710.
In this regard, the court notes that a state contractor and its employees are not state actors simply because they are carrying out a state sponsored program and the contractor is being compensated therefor by the state. Nor does the fact that the activity being performed is a public function render the contractor and its employees state actors. For the nature of the contractor's activity to make a ...