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Clowden v. City of Philadelphia

March 16, 2010


The opinion of the court was delivered by: Anita B. Brody, J.


Plaintiff Barbara Clowden ("Clowden") brings this § 1983 action on behalf of her deceased son, Eric Hayes ("Hayes"), who was murdered after participating in the Philadelphia District Attorney's Office's Witness Relocation Program. Defendants move for summary judgment, arguing that they had no affirmative duty to protect Hayes. For the reasons that follow, I will grant Defendants' Motions for Summary Judgment.


In November 2005, sixteen year-old Hayes witnessed an attempted arson at his family's residence in Southwest Philadelphia. Alexander Wade ("Wade") was arrested by the Philadelphia Police Department and charged with the attempted arson. After Hayes agreed to testify on behalf of the Commonwealth of Pennsylvania against Wade, Hayes began receiving threats concerning his testimony. To protect her son and her family, Clowden sought help from the Philadelphia District Attorney's Office and, in January 2006, entered into the Witness Relocation Program ("WRP"). Pursuant to a written agreement, the WRP provided Clowden and her three children, including Hayes, with funds for housing and food at a hotel outside of Philadelphia for four months. Plaintiff agreed to the terms of the agreement, including the four month limitation.

From January 2006 through May 13, 2006, Plaintiff and her family received funding from the WRP and resided at a hotel outside of Philadelphia. In May 2006, after the four month period expired, the District Attorney's Office referred Clowden to the City of Philadelphia's Office of Emergency Shelter Services ("OESS"), which assists citizens in need of emergency housing in the City of Philadelphia. The OESS located two rooms for Clowden and her family to stay in at a different hotel, where the family remained until November 2, 2006, when they moved into permanent housing in Northeast Philadelphia.

On November 22, 2006, Hayes was shot in the head. Hayes ultimately passed away from the gunshot wounds, but the investigation into Hayes' murder remains open and unsolved. Plaintiff brings this § 1983 action alleging that Defendants City of Philadelphia ("City") and the Philadelphia District Attorney's Office violated Hayes' constitutional right to be secure in his person.*fn2 Jurisdiction over this action is proper pursuant to 28 U.S.C. § 1331.


Summary judgment will be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). There is a "genuine" issue of material fact if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The "mere existence of a scintilla of evidence" is insufficient. Id. at 252.

The moving party must make an initial showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-movant must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In determining whether the non-moving party has established each element of its case, the court must draw all reasonable inferences in the non-moving party's favor. Id. at 587.


The federal law is clear: the Constitution confers no affirmative right to government aid unless there is a "special relationship" or a "state-created danger." See Zi Z. Ye v. United States, 484 F.3d 634, 636-37 (3d Cir. 2007). Plaintiff plausibly alleges two state-created dangers: (1) that the City created a danger by subpoenaing Hayes as a witness in the case against Wade and (2) that the City rendered Hayes more vulnerable to danger when it decided to terminate WRP protection after four months.

To show a state-created danger, a plaintiff must prove:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that ...

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