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Gardner v. Luzerne County

January 28, 2009

DAWN GARDNER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHARLENE KIM DEWITT A/K/A CHARLENE DE WITT KELLER, DECEASED, REBECCA JANE THOMPSON, CUSTODIAN AND NEXT FRIEND ON BEHALF OF R.E.D.T. A MINOR PLAINTIFFS
v.
LUZERNE COUNTY, LUZERNE COUNTY DISTRICT ATTORNEY'S OFFICE, DAVID W. LUPAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF LUZERNE COUNTY, GREGORY E. FELLERMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS LUZERNE COUNTY ASSISTANT DISTRICT ATTORNEY, JANE/JOHN DOE I AND II INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS ASSISTANT DISTRICT ATTORNEYS, JOHN/ JANE DOE III AND IV INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS PROFESSIONAL PERSONNEL AND OFFICERS OF LUZERNE COUNTY ASSISTANT DISTRICT ATTORNEY'S OFFICE, FREDERICK NICHOLS, JR. INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CONSTABLE/POLICE OFFICER, OFFICE OF THE ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA PHARMACEUTICALS DEFENDANTS



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

This case presents an unusual factual scenario that raises questions concerning the potential liability of state prosecutors where they impede the timely disposition of criminal charges and the defendant is murdered by a known threat to her safety before the defendant can plead guilty and re-locate to another jurisdiction. Plaintiffs Dawn Gardner, individually and as administratrix of the Estate of Charlene Kim Dewitt, deceased, and Rebecca Jane Thompson, custodian and next friend on behalf of R.E.D.T., a minor, bring this action against Luzerne County, the Luzerne County District Attorney's Office, former District Attorney David W. Lupas, and Assistant District Attorney Gregory E. Fellerman (collectively, the Luzerne County Defendants).*fn1 Plaintiffs allege that Defendants violated the First, Fourth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution by (a) postponing Ms. DeWitt's plea hearing; (b) imposing bail bond restraints on Ms. DeWitt while knowing of the danger posed by Ms. DeWitt's former domestic partner, and (c) failing to execute a warrant for the arrest of Ms. DeWitt's former domestic partner.

Before the Court is the Luzerne County Defendants' Motion to Dismiss Plaintiff's Amended Complaint.*fn2 (Dkt. Entry 17.)*fn3 Because Plaintiffs are unable to present a viable claim for denial of any constitutional right under the unique factual scenario presented in this matter, the Luzerne County Defendants' Motion to Dismiss will be granted.

I. BACKGROUND

George Fink, Sr., the domestic partner of Ms. DeWitt, allegedly forced Ms. DeWitt, under a threat of bodily injury, to use and possess cocaine on May 13, 2005. (Amended Complaint, Dkt. Entry 5, ¶ 19.) Then, while Ms. DeWitt was driving her vehicle on the highway, Mr. Fink deliberately smashed into her vehicle with his own vehicle, forcing her off the highway. (Id.) Mr. Fink's alleged objective was to silence Ms. DeWitt, or at least ensure she stayed under his watch. (Id.)

As a result of the accident, Ms. DeWitt was brought to the police station and charged with drug possession and motor vehicle violations. (Id. at ¶ 20.) While at the police station, she made certain admissions. (Id.) She ultimately signed a standard bail bond agreement for release on her own recognizance on June 20, 2005, which Plaintiffs claim limited her ability to move to another residence.*fn4 (Id.)

Mr. Fink was also prosecuted in connection with the May 13, 2005 incident. He, too, was released on his own recognizance. (Criminal Docket, Commonwealth v. Fink, CP-40-CR-0002183-2005, at 6 (Pa. Common Pleas Ct., Lackawanna County, 2005.) Almost four months later, on October 4, 2005, Mr. Fink pled guilty to criminal charges stemming from the May 13, 2005 accident. (Id. at ¶ 21.) He remained released on his own recognizance pending sentencing.

Ms. DeWitt apparently served as a witness for the state. (Id.) Ms. DeWitt also served as a witness against Mr. Fink for his alleged stalking and harassment of her on July 25, 2005. (Id. at ¶ 22.)

While Mr. Fink awaited sentencing, Ms. DeWitt obtained a Protection From Abuse ("PFA") Order from the court on December 5, 2005. Plaintiffs allege that Defendants knew of Mr. Fink's history of violent attacks on domestic partners, and that he would attempt to kill Ms. DeWitt. (Id. at ¶ 24.) It is also alleged that Defendants failed to effect an indirect criminal contempt capias issued for Mr. Fink on January 9, 2006. (Id.)

On October 27, 2005, Ms. DeWitt had a plea hearing scheduled, and intended to plead guilty to the misdemeanor charges resulting from the May 13, 2005 accident, pay a fine, and request to be released from her pretrial restrictions so she could protect herself from Mr. Fink. (Id. at ¶ 25.) The proceeding was rescheduled, however, because Defendant Luzerne County Assistant District Attorney Gregory E. Fellerman represented her in a personal injury claim against Mr. Fink arising out of the May 13, 2005 accident. (Id.) Since the Luzerne County District Attorney's office was prosecuting the case, there was a conflict of interest. (Id.)

The court rescheduled the plea hearing for January 10, 2006. (Id.) Plaintiffs claim Ms. DeWitt never knew the reason for rescheduling of the plea hearing. (Id.) When the date of the hearing arrived, the court found that the same conflict of interest persisted, so the court again rescheduled the plea hearing for a later date. (Id. at ¶ 27.) In the interim, Ms. DeWitt made repeated requests to move to Florida in order to protect herself from Mr. Fink. (Id. at ¶ 28.)

Mr. Fink failed to appear for his sentencing in connection with the May 13, 2005 accident, scheduled for January 9, 2006, so the court issued a bench warrant for his arrest on January 20, 2006. (Id.) On January 21, 2006, Mr. Fink attacked Ms. DeWitt, causing her death. (Id. at ¶ 30.)

Plaintiffs have alleged thirteen counts of relief in their seventy-page Amended Complaint. Plaintiffs' First Claim for relief is premised upon the Substantive and Procedural Due Process Clauses of the Fourteenth Amendment, the Eighth Amendment, the First Amendment right to petition the Government for a redress of grievances, the Privileges and Immunities Clause of Article Four, the Fourteenth Amendment right of access to courts, the Fourth Amendment right against unreasonable searches and seizures, the Sixth Amendment right to a speedy trial, and the right to travel under the Privileges and Immunities Clause. (Id. at pp. 17 - 31.) Plaintiffs contend that Defendants violated Ms. DeWitt's Substantive Due Process rights by: delaying the operation of a bench warrant; delaying an indirect criminal contempt capias; creating a conflict of interest by allowing assistant district attorneys to represent plaintiffs in civil claims that are simultaneously being prosecuted criminally; delaying the withdrawal of an attorney with a conflict of interest; delaying Ms. DeWitt's plea hearing with knowledge that she was targeted for abuse; compelling Ms. DeWitt to remain in the jurisdiction with her attacker; delaying the operation of a PFA order; and denying Ms. DeWitt's request to leave the jurisdiction. (Id. at ¶ 32(a)-(t).) According to Plaintiffs, Defendants alleged conduct "shocks the judicial conscience" and is not in furtherance of any legitimate governmental interest. (Id. at ¶ 33.)

Defendants are alleged to have violated the Procedural Due Process Clause of the Fourteenth Amendment by confining Ms. DeWitt's physical movement and depriving her of protection. (Id. at ¶ 37(a)-(f).) Plaintiffs allege Defendants also violated the Eighth Amendment by subjecting Ms. DeWitt to cruel and unusual punishment in exposing her to lethal danger and demanding continued compliance with her bail bond restraints. (Id. at ¶ 39(a)-(c).) Defendants are alleged to have violated the First Amendment, the Privileges and Immunities Clause of Article Four, and the Fourteenth Amendment for depriving Ms. DeWitt of the opportunity to plead guilty and to access judicial relief. (Id. at ¶ 40(a)-(c).) Plaintiffs allege that Ms. DeWitt's Fourth Amendment right against unlawful seizures was violated by Defendants in mandating compliance with travel restraints in light of the imminent danger. (Id. at ¶ 41(a)-(c).) The Sixth Amendment right to a speedy trial was allegedly violated in Defendants depriving Ms. DeWitt of the opportunity to plead guilty and to have a timely adjudication. (Id. at ¶ 42(a)-(c).) Finally, Plaintiffs allege violations of the Right to Travel of the Privileges and Immunities clause by precluding Ms. DeWitt from traveling to Florida. (Id. at ¶ 43(a)-(c).)

Plaintiffs' Second Claim for relief, against former District Attorney David Lupas, alleges constitutional violations pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Mr. Lupas is alleged to have willfully and deliberately, with reckless indifference, adopted policies and customs in his role as supervisor that: delayed the processing of the bench warrant and indirect criminal contempt capias for Mr. Fink; created a conflict of interest resulting in disqualification from Ms. DeWitt's criminal matter; delayed Ms. DeWitt's plea of guilty; required Ms. Dewitt to notify the court upon a change in residence; delayed the indirect criminal contempt proceeding; did not allow for the flow of information through the office; and failed to minimize the danger to Ms. Dewitt. (Am. Compl. at ¶¶ 46(a)-(j) & 47(a)-(n).) These allegations are also alleged in the context of a purported failure to train or supervise the District Attorney's staff. (Id. at ¶ 47(a)-(l).)

Plaintiffs' Third Claim for relief presents allegations under the same amendments and articles of the United States Constitution as the First Claim for relief, except only Luzerne County is named as the Defendant. (Id. at 44.) Plaintiffs allege that Luzerne County had ineffective policies for handling cases such as this one, failed to properly train and supervise its personnel, failed to discipline its personnel, and tolerated a policy of providing inadequate protective services. (Id. at ¶ 50(a)-(h).) Plaintiffs allege that these policies "shock the conscience" and did not further a legitimate governmental interest. (Id. at ¶ 51.) Plaintiffs aver that Luzerne County's policies and practices constitute cruel and unusual punishment under the Eighth Amendment because Ms. DeWitt was exposed to lethal danger and required to remain in close proximity to Mr. Fink. (Id. at ¶ 53(a)-(c).)

Plaintiffs contend that in allegedly depriving Ms. DeWitt of an opportunity to plead guilty, Luzerne County violated her access to judicial relief under the First Amendment, the Privilege and Immunities Clause of Article Four, and the Fourteenth Amendment. (Id. at ¶ 54(a)-(b).) Plaintiffs likewise allege that Luzerne County violated the Fourth Amendment by precluding her from leaving the area and mandating compliance with bail restrictions. (Id. at ¶ 55(a)-(c).) Luzerne County is alleged to have violated Ms. Dewitt's right to travel and right to a speedy trial under the Sixth Amendment for the same reasons mentioned previously. (Id. at ¶¶ 56 & 57.)

Plaintiffs' Fourth Claim for relief, which alleges Mr. Nichols violated certain constitutional rights of Ms. DeWitt, has been withdrawn. (Stipulation of Dismissal, Dkt. Entry 57.) The Fifth Claim is premised upon the right of familial relationships guaranteed by the Fourteenth Amendment and the First Amendment. (Id. at 54.) According to the Amended Complaint, all Defendants violated the rights of "Dawn Gardner and her minor sister," causing them to suffer severe emotional distress. (Id. at ¶ 67.)

The Sixth Claim, asserted against the Office of the Attorney General of the Commonwealth of Pennsylvania, is no longer at issue as Plaintiff Dawn Gardner has agreed to dismiss it from this action. (Stipulation, Dkt. Entry 38, at 1.) The Seventh Claim rests upon provisions of the Pennsylvania Constitution that parallel the provision of the United States Constitution upon which Plaintiffs' federal law claims are premised. (Id. at 57.) Specifically, Plaintiffs allege violations of Article 1 Sections 1, 26, and 28 of the Pennsylvania Constitution. (Id. at ¶¶ 71-73.)

The Eighth Claim sets forth a wrongful death claim under 42 Pa. Cons. Stat. § 8301. (Id. at ¶ 77.) Plaintiffs assert Defendants' conduct was a substantial cause in Ms. DeWitt's death. (Id.) The Ninth Claim asserts a survival action pursuant to 20 Pa. Cons. Stat. § 3373 and 42 Pa. Cons. Stat. § 8302 for damages, pain and suffering, and loss of gross earning power. (Id. at ¶¶ 82-83.)

The last four claims concern only Defendant Fellerman. The Tenth Claim for relief avers a professional liability claim. (Id. at 62.) Plaintiffs assert that Mr. Fellerman was aware of the May 13, 2005 accident and subsequent criminal charges, and deviated from acceptable professional standards by failing to resign as assistant district attorney following the October 27, 2005 scheduled plea hearing, or by not expeditiously addressing the conflict after his disqualification. Rules of Professional Conduct 1.7, 1.16 and 1.18 are also alleged to have been violated. (Id. at ¶88(a)-(f).)

The Eleventh Claim alleges that Mr. Fellerman breached his fiduciary duty by failing to resolve his conflict of interest while representing Ms. DeWitt in her civil claim. (Id. at ¶ 91.) His alleged omission was a substantial cause in Ms. DeWitt's death. (Id. at ¶ 95.) The Twelfth Claim presents a wrongful death claim pursuant to 42 Pa. Cons. Stat. § 8301 for Mr. Fellerman's alleged misconduct -- an alleged substantial factor in Ms. DeWitt's death. (Id. at ¶¶ 97-99.) The Thirteenth Claim is a survival action pursuant to 42 Pa. Cons. Stat. §§ 3373 and 8302 for damages, pain and suffering, and loss of gross earning power.

II. DISCUSSION

A. Standard of Review

The Court's task on a motion to dismiss is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief . . . ." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn ...


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