MEMORANDUM OPINION AND ORDER
This аction arises out of the murder of Marguerite Anne Bowers by Thomas Vanda, who had been released from the custody of the Illinois Department of Mental Health and Development Disabilities (DMHDD). Vanda, who has been diagnosed as schizoid and a borderline psychotic, has a lengthy history of violent behavior. In November, 1971, Vanda was arrеsted and charged with the knife-murder of a minor. On June 24, 1975, Vanda was found not guilty by reason of insanity and was committed to the Illinоis Department of Mental Health. On April 2, 1976, Vanda was released from confinement at DMHDD on the certification that he no longer was dangerous to himself or to other people. Slightly more than a year later, Vandа committed the knife-murder of Marguerite Bowers.
Plaintiff, the brother of the deceased, then brought this action allеging that the defendants’ negligent release of, and failure to supervise, Vanda was the cause of Margueritе Bowers’ death, and thus constituted a deprivation of life without due process in violation of 42 U.S.C. § 1983. In a Memorandum Oрinion dated April 3, 1978, Judge Flaum, who previously presided over this action, ruled that plaintiff’s allegations were sufficient to state a claim for relief under section 1983. This ruling was reaffirmed by a Memorandum Opinion of July 12, 1979, in which the Court denied dеfendants’ motion for summary judgment.
The sole issue raised by defendants’ DeVito, Levitt, dePara, Castellanos, and Benton instant motion for summary judgment is whether plaintiff’s section 1983 claim remains viable in light of the recent opinion in
Martinez v. California,
- U.S. -,
The Supreme Court, in affirming dismissal of the action, observed that while section 1983 is a specie of tort liability, not еvery injury which might be attributable to a state official is actionable thereunder.
Cf. Paul v. Davis,
The critical inquiry in Martinez was whether the action of the parolee was so direct a consequence of his negligent release that it assumes the gloss of state action as required to state a claim under section 1983. As did the Supreme Court in Martinez, we concludе that the undisputed facts fail to establish the requisite state action. Slightly more than one year elapsed bеtween Vanda’s release and his murder of Marguerite Bowers. As the plaintiff acknowledges, there was a failurе on the part of the defendants to supervise Vanda during this period. 2 In addition, there is no evidence that the defendants were aware of any peculiar danger posed to Marguerite Bowers by Vanda’s releasе.
Accordingly, on the basis of
Martinez
and the undisputed facts of this case, summary judgment on plaintiff’s section 1983 claim is granted in favor of defendants DeVito, Levitt, dePara, Castellanos, and Benton. In addition, the Court will exercise its discretion to dismiss plaintiff’s claim against these defendants under state law for wrongful death.
United Mine Workers v. Gibbs,
Notes
. At the outset, the Court observes that while Martinez arose in the context of a decision by the state parole board, the analysis therein appears to be equally applicable to decisions by' mental health departments to release patients.
. The plaintiff’s argument that Illinois law imposes upon defendants the duty to supervise released mental patients misses the point. Assuming this to be true, plaintiff at most can allege that defendants’ behavior gives rise to state law tort liability. As Martinez emphasized, however, the existence of state law tort liability does not lead inevitably to liability under section 1983. Indeed, the result in Martinez suggests that the very fact which might establish state law liability — the failure to supervise after release — militates against the existenсe of state action under section 1983.
. In so doing, the Court expresses no view as to the merits of plaintiffs state law claim. Plaintiff, of course, remains free to file his state law claim in the appropriate state forum.