MEMORANDUM
1. INTRODUCTION
This case arises out of the refusal by officers of the Philadelphia Police Department to make a forcible entry into the apartment of Nadine White in response to a 911 call placed on May 25, 1998. Plaintiffs allege in their complaint that Jeffrey Sessoms was in Nadine White’s apartment when the police arrived and that he murdered her after they left the scene. Plaintiffs brought suit under 28 U.S.C. § 1983 and state law. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1367.
Plaintiff Marlene White is both the administratrix of Nadine White’s estate and Nadine White’s mother; she brought suit both on behalf of the estate and individually and in her own right.
1
Plaintiff Dontae Benn is Nadine White’s minor son; plaintiffs’ complaint does not specify whether he brought suit individually or on his mother’s behalf.
2
Named as defen
Currently before the Court is defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For the following reasons, defendants, motion will be granted and the complaint will be dismissed as to all defendants.
II.BACKGROUND
The facts of this case are undeniably tragic. Plaintiffs allege that on May 25, 1998, Officer Wright, Officer Jenkins and possibly other John Doe Officers were dispatched to the home of Nadine White in response to a 911 call placed by Nadine White’s neighbors. The neighbors placed the call at approximately 4:21 a.m. in response to screaming from Nadine White’s apartment. Allegedly, at the time the Officers arrived at the apartment, Nadine White and Jeffrey Sessoms, her murderer, were inside the apartment. According to the complaint, when the Officers arrived at the scene, they knocked on the apartment door. No one responded, and hearing nothing, the Officers refused to make a forcible entry. Plaintiffs aver that Mr. Sessoms murdered Nadine White after 4:21 a.m. and that she was still alive when the Officers refused to force entry into her apartment. See Complaint ¶¶ 3 & 23.
Based on these facts, plaintiffs assert two claims pursuant to 42 U.S.C. § 1983, one against the Officers for a violation of Nadine Wright’s right not to be deprived of life or liberty without due process of law in violation of the Fourteenth Amendment (Count 1); and one against the City of Philadelphia for a violation of Nadine White’s rights as a result of its policies and practices in failing to train and supervise its police officers (Count Two). Plaintiffs also assert two state law claims against the Officers — a wrongful death action (Count Three); and a survival action (Count Four).
III. STANDARD OF REVIEW
Rule 12(b)(6) of the federal rules of civil procedure provides that a defense of “failure to state a claim upon which relief can be granted” may be raised by motion in response to a pleading. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff.
See Jenkins v. McKeithen,
IV. DISCUSSION
A. Claims Against the Officers Under 42 U.S.C. § 1983
Plaintiffs bring two claims pursuant to 42 U.S.C. § 1983. Section 1983 provides, in relevant part, as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution
State actors do not have an affirmative obligation to protect individual citizens from private violence. As the Supreme Court wrote in
DeShaney v. Winnebago County Dep’t of Social Services,
1. The State Created Danger Theory of Liability.
In
DeShaney,
the Supreme Court considered whether the state had an affirmative obligation to protect Joshua DeSha-ney, a chronically abused child, from his abusive father when the state social services agency was aware that Joshua was in danger.
DeShaney,
Based on this language from
De-Shaney,
the Third Circuit articulated the state created danger theory of liability, which was applied for the first time in
Kneipp v. Tedder,
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actors 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 third party’s crime to occur.
a. Foreseeable and Fairly Direct Injury
Plaintiffs allege that the Officers in this case “had every reason to believe that Nadine White’s life was in extreme danger and that entry was necessary to save her life.” Complaint ¶ 24. The Officers responded to a 911 call in which neighbors reported a “person screaming.” Complaint ¶ 15. Once there, the neighbors directed the Officers to Nadine White’s door and told them that they had heard screaming and a dog barking. Complaint ¶ 16. Based on these allegations, the Court concludes, as a matter of law, that Nadine White’s injuries were not foreseeable and fairly direct.
In
Morse v. Lower Merlon School District,
Similarly, in
Estate of Burke v. Mahoney City,
No. 99-1357,
The plaintiff in
Burke
contended that the officers’ knowledge of the threats and their failure to take appropriate action created a dangerous situation that was actionable under a state created danger theory of liability.
Id.
at 279. The District Court
Just as “vacuous threats by angry and intoxicated young adults” are common, so are domestic disturbances — including screaming and barking dogs. In this case, it was not foreseeable that failure to respond to screaming would result in murder. 7 As such, the Court concludes that plaintiffs have failed to allege facts sufficient to meet the first prong of the Mark test.
b. Culpability
Mark’s second prong — whether the state actor acted in willful disregard for the safety of the plaintiff — requires that the state actor’s conduct “shock the conscience.”
See County of Sacramento v. Lewis,
As the Supreme Court explained in
Lewis,
action that shocks the conscience “in one environment may not be so patently egregious in another, and [the Court’s] concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.”
The case before this Court falls somewhere between the two extremes compared in
Lewis.
As the Supreme Court has observed, “the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs.”
Id.
at 853,
c. The Foreseeable Plaintiff Requirement
The third prong of the
Mark
test — the existence of a relationship between the state and plaintiff — permits a finding of liability only if “the victim is ‘known and identified,’ and not ‘simply a member of the greater public.’ ”
Morse,
Because the Court concludes the injury suffered by Nadine White was not foreseeable, the Court does not view her as a foreseeable plaintiff. On this issue, plaintiffs contend that concern for Nadine White’s safety precipitated the 911 call her neighbors placed; her neighbors specifically identified her apartment as the site of a potential danger.
See
Complaint ¶¶ 1, 14, 16, 23, 31. Plaintiffs argue that, based on these facts, the police should have foreseen that their actions could cause danger to the occupant of the apartment. The Court disagrees. As there was no foreseeable injui’y, there was no “contact” between the defendants and decedent — Nadine White could not have been a “Foreseeable victim of the defendant’s acts in a tort sense.”
Morse,
d. Creating an Opportunity that Would not Otherwise Have Existed
The fourth prong of the test applied in
Mark
requires that “the state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.”
Kneipp,
These allegations, when viewed in the light most favorable to the plaintiff, do not set forth facts sufficient to meet the requirements of the fourth prong of the
Mark
test. As discussed in
Henderson v. City of Philadelphia,
to satisfy this fourth factor, the “court must determine ... whether the officers’ acts or omissions ‘placed’ [the victim] in greater danger than he already faced such that the state can be said to have ‘created’ a danger to [the victim].”
Henderson v. City of Philadelphia,
In
Kneipp v. Tedder,
the first case in which the Third Circuit found a substantive due process violation under the state created danger exception, the court concluded that the police affirmatively placed Samantha Kneipp in jeopardy.
Kneipp,
Unlike the situation in
Kneipp,
where officers cut Samantha Kneipp off from her private source of aid, the district court in
Henderson
did not find a state created danger where an individual’s private source of rescue was still available.
See Henderson v. City of Philadelphia,
As the officers were reviewing his commitment papers, Salim Henderson stated that he did not want to go to the hospital and told the officers that he had to go upstairs for something. Donna Henderson and the police did not follow him upstairs. Once Salim Henderson was “out of earshot,” Donna Henderson informed the police that she was concerned that Henderson might jump. Id. at *2. Three to four minutes later, Salim Henderson jumped from the second-story window; he suffered severe and permanent injuries as a result of the fall. Plaintiffs brought suit under § 1983, alleging that the officers violated Salim Henderson’s substantive due process right to bodily integrity by failing to take him into custody and thus preventing him from injuring himself.
Based on these allegations, the district court in Henderson concluded that the plaintiffs had failed to establish that the officers created a situation that increased any risk of harm or subjected the plaintiffs to risk that did not exist before the officers acted. Henderson, at *11. Comparing the case to Kneipp, where police officers interfered with Joseph Kneipp’s attempt to take his intoxicated wife home safely, the court observed that the officers did not. cut Henderson off from his private source of aid: “[T]he officers in this case exerted no control over Henderson’s environment and did not cut him off from the assistance of his mother.” Id. at *11-12.
The Officers in the instant case likewise did not exert any control over Nadine White’s environment or interfere with any soui-ce of private assistance. Rather, the Officers “simply let the events unfold as they stood idly by[ ].”
Burke,
Plaintiffs have not alleged in their complaint facts sufficient to meet the fourth prong of the Mark test with respect to the claims asserted on behalf of Nadine White. The Officers did nothing to place Nadine White in jeopardy — they only failed to protect Nadine White from private violence. Such inaction does not create liability.
Plaintiffs have failed to allege in their complaint facts sufficient to meet all four requirements of the Mark case. Thus, the Court concludes that plaintiffs have not stated a claim on Nadine White’s behalf upon which relief can be granted against defendant Officers under the state created danger theory of liability. The Court now turns to plaintiffs’ individual claims.
2. Plaintiffs’ Individual Capacity Claims
Plaintiffs Marlene White, Nadine White’s mother, and Dontae Benn, Nadine White’s minor son, allege generally that they seek redress for the violation of “their
a.Foreseeable and Fairly Direct Injury
Applying the state created danger test in
Solum v. Yerusalim,
the Third Circuit addressed the question whether parents could bring a due process claim for loss of association with their child, who was killed in an auto accident, allegedly as a result of poorly maintained roads. As the court observed, even where injury to an individual is foreseeable, it does not necessarily follow that injury suffered by the parents of the injured party in the form of a loss of an “assumed constitutional right to associate” with that child is foreseeable.
See Solum v. Yerusalim,
No. 99-1607,
b. Culpability
As discussed
supra,
under the second
Mark
factor, actions undertaken by a state official must shock the conscience to establish a claim for a substantive due process violation via séction 1983. Because the defendants could not have foreseen that Marlene White and Dontae Benn would suffer a constitutional injury, the Officers could not, as a matter of law, demonstrate the culpability required to establish liability under the state created danger exception. The Third Circuit has explained that “the notion of deliberate indifference contemplates a danger that must at least be foreseeable.”
Morse,
c. The Foreseeable Plaintiff Requirement
The plaintiffs in this case do not qualify in their individual capacities as foreseeable plaintiffs. As discussed
supra,
the third prong of the
Mark
test “ ‘contemplat[es] some contact such that the plaintiff was a foreseeable victim of the defendant’s acts in a tort sense.’ ”
Morse,
d. Creating an Opportunity that Would not Otherwise Have Existed
Finally, as discussed above, with respect to the fourth prong of the
Mark
test, the Court concludes that the Officers did not create an opportunity for harm to occur to Nadine White — the Officers simply let events unfold as they stood by.
See Burke,
Plaintiffs have failed to allege in their complaint facts sufficient to meet all four requirements of the Mark case with respect to their individual capacity claims. Thus, the Court concludes with respect to such claims that plaintiffs have failed to state a claim upon which relief can be granted against defendant Officers under the state created danger theory of liability.
B. Qualified Immunity
Having concluded that the plaintiffs have failed to state a claim upon which relief can be granted, the Court will now turn to the issue of qualified immunity. It is well settled that government officials are entitled to a defense of qualified immunity when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would not have known.”
Harlow v. Fitzgerald,
Even if the Court were to find that plaintiffs’ complaint alleges facts sufficient to prove the deprivation of a constitutional right, the Court concludes that the constitutional rights claimed on Nadine White’s behalf were not clearly established. As the Third Circuit has explained, “the courts are required to conduct more than a generalized inquiry into whether an abstract constitutional right is implicated.”
In re City of Philadelphia Litig.,
In this case, plaintiffs generally allege that the Officers violated Nadine White’s Fourteenth Amendment due process rights, invoking her rights to life and liberty. Complaint ¶¶ 25, 33-35. In contrast, the cases in which officers have been found liable on a state created danger theory have “narrowly delineated the situations under which state actors have an affirmative duty to act.”
Burke,
40 F.Supp.2d at
In addition, even if the Court assumes, without deciding, that plaintiffs had an individual constitutional right to associate with Nadine White, the defendant Officers did not violate that right, as discussed in Part IV(A)(2),
supra.
The Court thus holds that defendant Officers are entitled to qualified immunity as a matter of law.
See In re City of Philadelphia Litig.,
C. Claims Against the City of Philadelphia Under 42 U.S.C. § 1983
Plaintiffs assert claims against the City of Philadelphia (“the City”) for failing to adopt and implement policy regarding the proper handling 911 calls and failing to train its police officers in the proper response to such calls. Under
Monell v. Dep’t of Soc. Servs. of the City of New York,
As an initial matter, the Court must examine the issue of whether municipal liability is dependent upon a finding of liability on the part of an individual state actor. The Supreme Court has held that a municipal entity cannot be liable under the Fourth Amendment without a finding of liability on the part of an individual officer.
City of Los Angeles v. Heller,
In this case, plaintiffs allege separate, independent claims against the City, claiming that the City was deliberately indifferent in its (1) failure to adopt and implement a 911 policy to handle Priority 1 calls and (2) failure to train.
9
Complaint
Regardless of the theory under which suit is brought against the City, the first inquiry in any § 1983 claim “is to identify the specific constitutional right allegedly infringed.”
Albright v. Oliver,
In their claim against the City, plaintiffs generally allege substantive due process violations, asserting that Nadine White was deprived of her rights as secured under the Fourteenth Amendment. As the Court determined above, this claim fails to identify a cognizable constitutional injury because the Officers’ conduct did not satisfy the four part test set forth in
Mark v. Borough of Hatboro,
For the foregoing reasons, the Court concludes that plaintiffs have not identified in their complaint a cognizable constitutional right. In the absence of such a right, there can be no constitutional violation. Thus, plaintiffs have failed to state a § 1983 claim upon which relief can be granted against the City based on allegations that the City violated Nadine White’s substantive due process rights.
D. State Law Claims: Wrongful Death and Survival Actions
Under 28 U.S.C. § 1367, a district court may decline to exercise its supplemental jurisdiction over state law claims if “the district court has dismissed all claims over which it has original jurisdiction.... ” 28 U.S.C.A. § 1367(c)(3) (West Supp.1999). In interpreting this provision, the Third Circuit has held that “where the claim over which the district court has original jurisdiction is dismissed before trial, the dis-
The Court concludes that there is no affirmative justification to retain jurisdiction over plaintiffs’ state law claims in this case. Because the Court will grant defendant’s motion to dismiss as to the federal claims, the Court declines to exercise supplemental jurisdiction over plaintiffs’ state law wrongful death and survival actions brought against the Officers in their individual capacities, and those claims will be dismissed without prejudice.
V. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. An appropriate order follows.
ORDER
AND NOW, to wit, this 27th day of October, 2000, upon consideration of the Complaint (Document No. 1, filed May 24, 2000); Defendants’ Motion to Dismiss (Document No. 4, filed June 16, 2000) filed on behalf of defendants City of Philadelphia, Police Officer Bruce Wright and Police Officer Omharr Jenkins; Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Complaint (Document No. 6, filed July 31, 2000); and Defendants’ Reply Memorandum of Law in Further Support of Their Motion to Dismiss (Document No. 7, filed Aug. 7, 2000), IT IS ORDERED that:
1. Defendants’ Motion to Dismiss is GRANTED as to plaintiffs’ claims under 42 U.S.C. § 1983 against Officers Bruce Wright, Omharr Jenkins, and John Doe A through Z, and those claims are DISMISSED WITH PREJUDICE;
2. Defendants’ Motion to Dismiss is GRANTED as to plaintiffs’ claims under 42 U.S.C. § 1983 against the City of Philadelphia and those claims are DISMISSED WITH PREJUDICE;
3.Plaintiffs’ claims under Pennsylvania state law against Officers Bruce Wright, Omharr Jenkins, and John Doe A through Z, are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
Notes
. For the purposes of the motion to dismiss, defendants assume that Marlene White has standing to bring suit in her individual capacity for the loss of her adult child. The Court notes the somewhat unsettled state of the law concerning whether a parent may sue under section 1983 for the constitutional deprivations suffered by the parent's adult child. In
Estate of Bailey by Oare v. County of York,
the Third Circuit relied on the Seventh Circuit's determination that a parent of a child who has died as a result of state action may maintain an action under § 1983 for the unlawful deprivation of the child’s liberty.
Estate of Bailey,
Other courts have found this reasoning persuasive, ruling that parents of adult children may maintain actions under § 1983 for deprivations of the constitutional rights of the parents' adult children.
See, e.g., Schieber v. City of Philadelphia,
This Court agrees with the foregoing authority and concludes that Marlene White has standing to sue on behalf of her deceased adult child.
. The plaintiffs allege that they bring suit to redress the "violation of their rights under the United States Constitution....'' Complaint
. Plaintiffs allege that it is possible "other unidentified John Doe Police Officers were dispatched to the scene.” Complaint ¶ 2. They proposed the Filing of an amended complaint if any such unnamed officers were identified during discovery. Complaint ¶ 12. To date, the plaintiffs have not filed an amended complaint.
. It is well settled that action undertaken by police officers in the exercise of their official duties is action taken under color of state law.
See Screws v. United States,
. The Court notes that, under Third Circuit Internal Operating Procedures §§ 5.1, 5.3, 5.4, 5.6 and 5.8, this unreported memorandum opinion was not circulated to the non-panel active judges and has no precedential value. Nevertheless, this Court finds it instructive.
. It is not entirely clear who made this final threat. The District Court noted that the witnesses' disagreed as to whether Beninsky or Buscavage made this threat,
see Burke,
.
But see Schieber v. City of Philadelphia,
. The Court notes that this unreported memorandum opinion has no precedential value, but finds it instructive. See supra note 5.
. Specifically, plaintiffs allege (1) that the City was deliberately indifferent in failing "to adopt and implement 911 policies and procedures that properly guide officers in their