MEMORANDUM
This is an action pursuant to
Bivеns v. Six Unknown Named Agents of Federal Bureau of Narcotics,
We may grant summary judgment only if there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett,
I.
The facts, taken in the light most favorable to plaintiffs, are as follows. Phillip McCall was a convicted bank robber sen
McCall fulfilled the conditions of his probation without significant incident until December, 1996 when he tested positive for illegal drugs for the first time. The inauspicious change in McCall’s behavior prompted Jones to supervise him more actively. Pursuant to Probation Office policy, Jones began to administer weekly urine tests and arranged for McCall to undergo drug and alcohol abuse counseling as well аs psychological and psychiatric evaluations. Despite noting “somewhat paranoid-sounding speech patterns,” the evaluation did not produce a specific diagnosis or prescribe medication. McCall tested positive for drug use on three additional occasions but never after March 21, 1997.
In May, 1997, McCall left his residence without informing Jones. McCall and his girlfriend had moved into the apartment of The Reverend Orlando Hughes, the girlfriend’s uncle. On May 13, 1997, Jоnes received a telephone call from Mr. Hughes who claimed that McCall had physically assaulted him during an argument. McCall’s prior drug use, his unannounced move, and the assault on Mr. Hughes were all contrary to the conditions of his probation, and Jones immediately prepared a violation of probation petition. As a result of a warrant signed by then Chief Judge Edward Cahn, McCall was arrested by Deputy U.S. Marshals without incident on June 10, 1997, and another psychiatric evaluation was ordered. This evaluation recognized that “Mr. McCall exhibits a mild degree of possible paranoid ideation,” but, like the evaluation done earlier in the year, did not recommend “antipsychotic” medication.
A violation of probation hearing was held in September, 1997 before Chief Judge Cahn. While the court found that McCall had violated the terms of his probation, it did not revoke his probation. Instead, in November, 1997, the court ordered McCall to bе placed in a halfway house for twelve months, subject to a determination by a probation officer that McCall had “successfully adjusted.” Jones arranged for him to stay at the Kintock Group’s halfway house in Philadelphia. Jones met there with McCall’s case manager, scheduled a conference with McCall, and ordered yet another psychiatric evaluation to take place in December. Consistent with the two previous evaluations, it was nоt recommended that McCall receive any medication.
Contrary to the three evaluations already performed that year, Jones believed that McCall needed both medication and more intensive therapy. Therefore, after informing Chief Judge Cahn, Jones arranged for McCall to receive inpatient treatment at Kirkbride Center, a Philadelphia mental hospital. Jones also prepared an order, subsequently signed by the court, for the U.S. Marshal to transport him to Kirkbride Center on February 6, 1998.
Later that day, however, Jones received a telephone call from Kirkbride Center advising him that McCall had refused any treatment beyond a preliminary psychiatric exam and that he was leaving the hospital. Rather than request an immediate detention of McCall, Jones made arrangements with McCall’s daughter, who lived only a short distance from Kirkbride Center, to return him to the halfway house. Despite McCall’s refusal оf the medical treatment Jones thought necessary, Jones,
The immediate events giving rise to plaintiffs’ claim for relief began on April 10, 1998. That afternoon, the Friday before Easter, McCall left Kintock halfway house without permission to spend the weekend with his daughter, plaintiff Phyllis Brown. The following Monday, he returned to Kintock, but Kintock denied him re-admission on the ground that he had previously violated its rules by leaving without notice or permission. The next day, Jones informed McCall that this new infraction would be reported to the court. On April 16, Jones requested a hearing for possible violations of McCall’s probation. The court scheduled a hearing for April 20, 1998.
While McCall appeared at the courthouse on April 20, he left before the hearing began. Nevertheless, the hearing went forward without McCall but with his attorney in attendance. At the conclusion of the hearing, Chief Judgе Cahn revoked McCall’s probation and entered an Order to this effect on April 23. On May 1, the court issued an arrest warrant and commanded the U.S. Marshal to arrest McCall for failing to appear at the hearing on April 20. Jones did not advise the U.S. Marshal service about McCall’s recent history although it was aware generally about McCall, having arrested him previously in June, 1997.
Jones’ supervisory role ended when the court revoked McCall’s probation by order datеd April 23, 1998. Nonetheless, Jones made at least two attempts to inform McCall of the arrest warrant in order to prevent any unnecessary confrontation. On April 20 and April 23, Jones called his daughter, plaintiff Brown, to suggest that he surrender. Jones’ efforts were unsuccessful. On May 18, 1998, several Deputy U.S. Marshals attempted to arrest him. Although the parties dispute the events surrounding that attempted arrest, it is undisputed that a Deputy Marshal shot and killed McCall. 3
II.
Plaintiffs first contend that Jones is individually liаble for his “grossly inadequate and deliberately indifferent” supervision of McCall which violated his Fifth Amendment rights and which resulted in his death.
See Bivens,
It is a “well-established principle that the Due Process Clause [of the Fifth Amendment] does not impose an affirmative duty upon the state to protect its citizens.”
D.R. v. Middle Bucks Area Vocational Technical Sch.,
Plaintiffs in this case advance both exceptions to establish a constitutional claim against Jones.
The “special relationship” theory has its roots in
DeShaney v. Winnebago County Department of Social Services,
The Supreme Court observed that “when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself,” it has created or assumed a special relationship.
Id.
at 200,
The Court highlighted three areas in which a special relationship and its attendant constitutional duties had been found to exist. First, the state is required to provide adequate medical care to incarcerated prisoners.
Id.
at 198,
The
DeShaney
Court held, however, that the special relationship theory outlined in cases like
Estelle
and
Youngberg
did not apply to the circumstances before it.
Id.
at 201,
Our Court of Appeals reached a similar result in
D.R. v. Middle Bucks Area Vocational Technical School,
Recently, in
Nicini v. Morra,
We conclude that the relationship of probation officer and probationer that existed between Jones and McCall is closer to that outlined in
DeShaney
and
D.R.
than the special relationships recognized in
Estelle, Youngberg,
and
Nicini.
It is true that while McCall was a probationer, he was subject to certain conditions imposed by Chief Judge Cahn. Among other conditions, McCall was required to report to his probation officer once a month, to work forty hours a week, and to participate in a program of mental health treatment. However, unlike prisoners, involuntarily committed individuals, or foster children, McCall was not in the physical custody of the United States in general or Jones in particular.
See DeShaney,
The Sentencing Guidelines state that “probation may be used as an
alternative
to incarceration.” [emphasis added].
United States Sentencing Guidelines Manual,
Introductory Commentary, Ch. 5, Pt. B (1998). As a probationer, McCall was not even subject to the special conditions of community confinement or home detention.
Id.
at § 5B1.3(e)(l), (2). In sum, McCall’s probation was not an “incarceration, institutionalization, or other similar restraint of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of thé Due Process Clause.”
DeShaney,
In any event, the important fact remains that at the time of McCall’s death on May 18, 1998, he and Jones did not have any relationship at all, let alonе a special relationship which would give rise to affirmative duties under the due process clause of the Fifth Amendment. Several weeks before, on April 23, 1998, Chief Judge Cahn had revoked McCall’s probation. On May 1, the court issued a bench warrant for his arrest. From that point on, Jones had no responsibility for or control over what happened to McCall. The matter was then out of Jones’ hands and in the hands of the U.S. Marshal.
B.
Plaintiffs also claim that Jones is liable under а state-created danger theory as outlined by our Court of Appeals in
Kneipp v. Tedder,
(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (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 (quoting
Mark v. Borough of Hatboro,
The facts in this case, in contrast, do not contain the four elements required to maintain a state-created danger cause of action. First, the harm tragically experienced by McCall was neither a fоreseeable consequence of nor directly related to any of Jones’ acts or omissions as McCall’s probation officer. The alleged failures of Jones while supervising McCall — not requiring McCall to take antipsychotic medication, meeting with McCall too infrequently, belatedly requesting a violation of probation hearing — cannot be said to be the proximate cause of his death at the hands of a Deputy U.S. Marshal attempting to arrеst him for a probation violation pursuant to a court order. Furthermore, Jones had no responsibility for and no control over the actions of the Deputy U.S. Marshal who actually shot McCall. The performance of Jones as a federal probation officer is just too far removed from the actions that took place on May 18, 1998.
Second, there is no evidence that Jones acted in “willful disregard” for McCall’s safety. In Kneipp, the defendant рolice officer admitted that he was aware of Samantha’s intoxication and impairment when he sent her home alone. The facts in this case, rather than prove willful disregard, actually demonstrate Jones’ positive concern for McCall’s well-being. For example, Jones twice encouraged McCall and his family to surrender peacefully after Chief Judge Cahn revoked his probation in April, 1998.
Third, while there did exist at one time a relationship between the two, Jones did not place McCall in danger of the relevant harm while that relationship existed. See id. at 1209. In fact, he attempted to obviate any harm by urging McCall to give himself up. It is undisputed that the harm that McCall did suffer occurred almost a month after the relationship between McCall and Jones had ended and as noted above resulted from the action of Deputy U.S. Marshals who were trying to arrest McCall.
Finally, Jones did not use his authority as McCall’s probation officer to create “a dangerous situation or to make [McCall] more vulnerable to danger had [he] not intervened.”
Id.
at 1209. In Kneipp, the police substantially increased the risk of harm Samantha Kneipp faced when they separated her from her husband. This case, however, is more similar to
DeShaney
where the Supreme Court concluded that when the state returned the child to his father’s custody, “it placed him in no worse position than that in which he would have been hаd it not acted at all.”
DeShaney,
Plaintiffs have not produced any evidence of a state-created danger so as to establish a substantive due process claim.
In order to demonstrate a violation of McCall’s substantive due process rights under the Fifth Amendment, plaintiffs must show an abuse of executive power “so ill-conceived and malicious that it ‘shocks the conscience.’ ”
Miller v. City of Philadelphia,
Even if plaintiffs had adduced evidence of a special relationship or a state-created danger giving rise to affirmative duties on the part of the government, and regardless of which standard of culpability is applicable here, plaintiffs have not shown a genuine issue of material fact that Jones’ actions were an executive abuse of power that “shocks the conscience.”
Lewis,
III.
Plaintiffs also allege that Jones violated McCall’s Eighth Amendment right to be free from “cruel and unusual punishment.”
Insofar as plaintiffs base their claim on the еvents of May 18, 1998, it cannot survive Jones’ motion for summary judgment. Jones was not a party to the attempted arrest of McCall. He did not order the arrest, he did not execute the arrest warrant, and he did not shoot McCall. In this sense, plaintiffs have failed to show that Jones punished McCall at all.
Plaintiffs also assert that Jones’ allegedly deficient probationary supervision of McCall amounts to an Eighth Amendment violation. “[Wjhether a probationer has an Eighth Amendment right to be free from a probation officer’s deliberate indifference to his medical needs” is an open and “novel question.”
Fields v. McCannally,
“The Supreme Court has stated that at a minimum, a plaintiff alleging an Eighth Amendment claim for inadequate medical care must establish that defendants acted with ‘deliberate indifference’ to ‘serious medical needs.’ ”
Hall v. Smoyer,
No. CIV.A. 96-5296,
IV.
Defendant Cosgrove was Jones’ supervisor at all relevant times. Little need be said about the claims against him. Suffice it to say that if Jones committed no constitutional violations, it ineluctably follows that his supеrvisor, who had no contact with McCall, committed no constitutional violations.
See generally, Baker v. Monroe Township,
V.
In sum, plaintiffs have not produced any evidence that Jones or Cosgrove violated McCall’s Fifth or Eighth Amendment rights. Accordingly, the motion of defendants Philip Jones and Edward Cosgrove for summary judgment will be granted. 4
ORDER
AND NOW, this day of June, 2000, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of defendants ' Philip Jones and Edward Cosgrove for summary judgment is GRANTED; and
(2) judgment is entered in favor of defеndants Philip Jones and Edward Cos-grove and against plaintiffs Rotunda Taylor and Phyllis Brown.
Notes
. The plaintiffs are the children of Phillip McCall.
. Mental health specialists are not physicians or mental health professionals.
. The Deputy Marshal, who is also a defendant here, claims he acted in self-defense.
. The defendants have also argued qualified immunity. Because the Supreme Court has instructed us to decide the constitutional issues first and we have concluded no violation took place, we need not reach the qualified immunity issue.
See Lewis,