VAN ORDEN v. BOROUGH OF WOODSTOWN, NJ et al

Filing 151

OPINION. Signed by Chief Judge Jerome B. Simandle on 11/10/2016. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KATHRYN M. VAN
ORDEN,INDIVIDUALLY AND AS
ADMINISTRATIX AD PROSEQUENDUM
OF THE ESTATE OF CELENA J.
SYLVESTRI;

HONORABLE JEROME B. SIMANDLE

Civil No. 13-5002 (JBS/AMD)

Plaintiff,
OPINION
v.
BOROUGH OF WOODSTOWN, NJ; SALEM
COUNTY, NJ;
Defendant.

APPEARANCES:

Thomas W. Sheridan
Chrisopher D. Hinderliter
SHERIDAN & MURRAY, LLC
424 S. Bethlehem Pike
Third Floor
Fort Washington, PA 19034
Attorneys for the Plaintiff
A. Michael Barker
Vanessa Elaine James
BARKER, GELFAND & JAMES
210 New Road
Suite 12
Linwood, NJ 08221
Attorneys for Defendant Borough of Woodstown, NJ and
Woodstown Police Department
Michael Morris Mulligan
317 Shell Road
P.O. BOX 432
Carney’s Point, NJ 08069
Attorney for Defendants Salem County, NJ and
Salem County Sheriff

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff Kathryn Van Orden (“Plaintiff”) filed this suit

individually and as administratix of the estate of her daughter,
Celena J. Sylvestri, who drowned in her car after officials
opened the floodgates of the Veterans Memorial Lake Dam in Salem
County in anticipation of the arrival of Hurricane Irene in
August 2011. Plaintiff brought this action against various
municipal, county, and state officials alleging various statelaw tort claims and a state-created danger claim under 42 U.S.C.
§ 1983.
The state defendants asserted sovereign immunity under the
Eleventh Amendment and have already been dismissed from this
case. [Docket Item 32.] See Van Orden v. Borough of Woodstown,
No. 13-5002, 2013 WL 6447163, at *1-*2 (D.N.J. Dec. 9, 2013). In
an earlier opinion, the Court also considered the claims against
Borough of Woodstown and the Woodstown Police Department
(“Woodstown Defendants”), and Pilesgrove Township, and dismissed
the state tort actions against them, leaving only the § 1983
claim for state created danger. [Docket Item 44.] See Van Orden
v. Borough of Woodstown, 5 F. Supp. 3d 676, 679 (D.N.J. 2014).
In a subsequent opinion, the Court granted dismissal of the
state law claims against Salem County and the Salem County

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Sheriff (“the Salem County Defendants”), but refused to dismiss
on sovereign immunity grounds, and further denied summary
judgment on the § 1983 claim for state created danger because
discovery was not yet complete. [Docket Item 107.] See Van Orden
v. Borough of Woodstown, No. 13-5002, 205 WL 8513255, at *1
(D.N.J. Dec. 11, 2015).
On March 31, 2015, the parties filed a stipulation of
voluntary dismissal as to Defendant Pilesgrove Township, stating
in part that “the parties agree that the dismissal of the
Pilesgrove defendants will automatically convert to a dismissal
with prejudice at the close of discovery.” [Docket Item 71.]
Pretrial factual discovery ended in this matter on August 31,
2015 and since no party has moved to reinstate Pilesgrove
Township [See Docket Item 99, Amended Scheduling Order] they
will be dismissed from this case with prejudice according to the
aforementioned stipulation. [Docket Item 71.]
Presently before the Court are two motions for summary
judgment on Plaintiff’s state-created danger claim brought by
the Woodstown Defendants and the Salem County Defendants.
II.

FACTUAL BACKGROUND
A. Veterans Memorial Lake Dam

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The Veterans Memorial Lake Dam (“the Dam”) is located in
the Borough of Woodstown in Salem County, New Jersey, and is
owned and operated by the Borough of Woodstown. (Vanaman Dep.
37:15-22; Woodstown Ex. 26, 33 “Maps.”) While the State has
oversight of the Dam through regulations and enforcement of the
regulations, the operation of the Dam is solely the
responsibility of the Borough of Woodstown. (See Pfeffer Dep.
115:7-12, “As far as operating the Dam, Woodstown had the sole
responsibility for that. . . . [W]e did not share that with any
other municipality.”) Salem County was in charge of coordinating
and assisting the municipalities within the County with any
needs regarding disaster response. (Pompper Dep. 12:1-13:1.)
Part of its role was to act as intermediary between the
municipalities and the State of New Jersey Office of Emergency
Management. (Id.) Woodstown always consulted with Salem County
when making safety decisions regarding the Dam. (Vanaman Dep.
42:22-44:9.)
The Dam has an Emergency Action Plan (“EAP”) in place.
Under the EAP, Defendants are responsible for identifying and
securing areas that are threatened by the Dam. (Pl. SMF ¶ 12.)
The Dam’s EAP delineates different roles and responsibilities
for the municipal, county, and state offices of emergency
management (“OEMs”) as follows:

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Municipal OEM Responsibilities:
1. Warn the public of emergency conditions at the dam.
2. Implement and direct required evacuations of threatened
areas.
. . .
County OEM Responsibilities:
1. Pass warning of emergency conditions at the dam to all
affected municipalities
2. Provide assistance to municipalities to help fulfill the
emergency responsibilities.
NJ State OEM Responsibilities:
1. Assumption of control and coordination (when appropriate)
of all emergency actions in accordance with Public Law.
2. Provision of assistance to the affected municipalities and
counties (when requested and beyond their capabilities)
3. Coordination of specialized assistance.
B. Hurricane Irene
Hurricane Irene was a large and destructive tropical
hurricane that hit Salem County, New Jersey on August 28, 2011.
In anticipation of the hurricane, an evening briefing was held
on August 25, 2011, two days prior to Irene’s expected arrival,
to give county staff and department heads an updated weather
briefing from the National Weather Service and to stress to
municipalities that they should prepare ahead of time for the
storm. (Pompper Dep. 46:2-8, 54:13-24, 61-62; Woodstown Ex. 17,
Salem County Power Point demonstration.) Based on experience
with the damage wrought by a prior hurricane, Hurricane Floyd in
1999, and by another major storm two weeks earlier on August 14,
2011, both the Woodstown and Salem County Defendants knew there

5

was the potential for severe flooding. (Pfeffer Dep. 102:2-9;
108-13-15.) During the prior storm on August 14, Harry Vanaman,
the Emergency Management Coordinator for the Borough of
Woodstown, in consultation with Richard Pfeffer, the Mayor of
the Borough of Woodstown at the time, and Jeff Pompper, the
Salem County Director of Emergency Services, opened the Dam’s
floodgates in response to rising waters in the Dam. (Vanaman
Dep. 63:11-64:1.) Route 40 near Kings Highway was not affected
by the opening of the floodgates on August 14, 2011. (Pfeffer
Dep. 85:4-85:9.)
With the August 14 storm fresh in Defendants’ mind, the
main concern with Hurricane Irene was that the ground was still
saturated with water from rainstorms occurring throughout the
previous two weeks. (Pompper Dep. 70:7-19.) This meant there
would likely be more runoff than normal. (Id.) With so much
water there were fears that the Dam could overtop, that it could
overflow beyond its spillway capacity, leading to erosion and
eventual failure of the Dam if not controlled. (Id.) Mr. Pfeffer
testified that the main concern when the Dam overtops is for the
immediate lake area, right near the Dam, specifically Mill
Street. Id.
In deciding how to prepare for the Hurricane and a
potential Dam breach, Woodstown had little concern regarding

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downstream effects, relying on a recent hydrologic and hydraulic
analysis of the Dam (“Engineer Analysis”), which indicated that
in the case of dam failure during a 100-year storm, there would
be no negative impacts to residential homes or major highways
2500 feet or more downstream of the Dam. (Pl. Ex. 19, Remington
and Vernick Engineers report, Woodstown/Pilesgrove/000018;
Pfeffer Dep. 101:5-11, 107:20-22.) Based on the Engineer
Analysis’ finding, Defendants did not consider flooding at the
Route 40 and Kings Highway intersection because it was around
10,000 feet downstream from the Dam. (Vanaman Dep. 258:5-14.)
Defendants also relied on the Woodstown’s EAP “Inundation
Maps” that predicted which areas would be affected if the Dam
overtopped. (Pl. Ex. 11, “Inundation Map.”) The maps did not
include any residential or commercial structures or roadways in
the “affected” areas, and more to the point, it did not include
the intersection of Route 40 and Kings Highway as a predicted
area for flooding. (Id; Woodstown Ex. 39, EAP excerpt on
Inundation Maps.)
C. Restricted Travel on Route 40 in Anticipation of Irene
In anticipation of the storm, Governor Christie issued a
state-wide State of Emergency. N.J. Exec. Or. No. 73 (Aug. 25,
2011). The emergency order authorized the State Director of
Emergency Management, “through the police agencies under his

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control, to determine the control and direction of the flow of
vehicular traffic on any State or interstate highway . . .
including the right to detour, reroute, or divert any or all
traffic . . .” Id. at ¶ 2. The Executive Order further stated in
part:
WHEREAS, this situation may become too large in scope to be
handled by the normal county and municipal operating
services in some parts of this State, and this situation
may spread to other parts of the State; and . . .
9. In accordance with N.J.S.A. App. A:9-40, no
municipality, county, or any other agency, or political
subdivision of this State shall enact or enforce any order,
rule, regulation, ordinance or resolution which will or
might in any way conflict with any of the provisions of
this Order, or which will in any way interfere with or
impede the achievement of the purposes of this Order.
(Woodstown 000033—000037, Executive Order No. 73.)
Salem County also issued a travel ban which prohibited all
non-emergency vehicles from traveling on any road in the County
after 10:00 p.m. on August 27, 2011. (See Woodstown Ex. 18,
Travel Ban; Pompper Dep. 125:6-18.)
D. Decision to Open the Floodgates
On Friday, August 26, 2011, two days before Hurricane Irene
hit, the Dam’s floodgates were partially opened in order to
lower the Dam’s water levels on Memorial Lake to prevent the Dam
from overtopping. (Vanaman Dep. 47:12-20, 60:1-9; Pompper Dep.
72:2-19, 76:4-20.) This decision was made by Mr. Vanaman, Mr.
Pfeffer, and Mr. Pompper, with the intent to control flooding.

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(Vanaman Dep. 234:12-236:14; Pompper Dep. 72:2-76:20.) In
anticipation of the coming heavy rains, the floodgates were
fully opened the following day, August 27, 2011, to take
pressure off the dam and provide a reservoir for the Hurricane’s
rains to fill. (Vanaman Dep. 60:1-9, 234:12-236:14, 238:9242:13.) This decision was made by Mr. Vanaman, Mr. Pompper, and
Mr. Pfeffer, who were concerned that if an upstream dam broke,
it could threaten the integrity of the Veteran’s Dam and
potentially cause a total dam failure. (Vanaman Dep. 238:9242:13; Pfeffer Dep. 80:23-84:11.)
Mr. Pompper, from Salem County, subsequently notified the
South Regional Office of Emergency Management that Mr. Vanaman
was concerned the Dam might overtop and so he was opening the
floodgates. (Pompper Dep. 77:4-78:11.) Woodstown’s Director of
Public Safety, Chris Simmermon, called the New Jersey State
Police to inform them that the Dam’s floodgates had been fully
opened. (Simmermon Dep. 129:6-17; Woodstown Ex. 10,
“Woodstown/Pilesgrove 00042-00045.")
Despite opening the floodgates, the Dam still overtopped
around 10:30 p.m. on August 27, 2011 and water flooded over Mill
Street, the road that runs over the top of the Dam, triggering
an emergency condition under the Emergency Action Plan for the
Dam (“EAP”). (Vanaman Dep. 37:6-12, 89:9-13; Pompper Dep. 89:1 

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10.) When Mr. Vanaman learned that this had occurred, he ordered
the Woodstown police to block off the affected area of Mill
Street and notified the New Jersey State Police of the Dam’s
Conditions, pursuant to the EAP. (Pompper Dep. 88:13-89:10.)
When Salem County heard that the Dam had overtopped, Mr. Pompper
quickly notified nearby Pilesgrove Township and Dupont Chambers
Works, an active chemical plant, but did not take any further
action because State police indicated they were taking control
since Route 40 near Kings Highway is in the jurisdiction of the
State police. (Pompper Dep. 105:23-106:17; 115:1-15.)
Due to the severity of the flooding, at around 9:43 p.m. on
August 27, the New Jersey State Police told Salem County that
they would close the affected section of Route 40 east of Kings
Highway within the next four hours. (See Woodstown Ex. 19,
“Phone message from Sergeant Jay Miller of New Jersey State
Police;” Pompper Dep. 106:1-17; Vanaman Dep. 197:5-11.) State
Police blocked the traffic west of the flooded portion of Route
40, but did not block traffic east of it, where Ms. Sylvestri
eventually drove through and drowned. State Police officer
Sergeant Jay Miller testified that they had requested barriers
to block Route 40, but were denied because the cones and signage
would become “projectiles” in the hazardous winds. (Statement of
Jay Miller 4:7-18.)

10

In the Borough of Woodstown, almost every road was flooded
and bridges were giving out; Woodstown had no control over the
water coming from upstream. (Vanaman Dep. 447-450.) The
Woodstown Police Department was continuously responding “from
one emergency to the next” throughout the storm. (Simmermon Dep.
25.)

Three people were required to evacuate when water flooded

their home from a failed dam upstream, the East Lake Dam.
(Vanaman Dep. 226.) The Woodstown Police Department was busy
pulling people out of flooded cars. (Simmermon Dep. 144:1-10.)
At around 11:00 p.m. on August 27, 2011, Route 40 at
Chestnut Run, a tributary which flows into the Salem River
downstream of the Dam, overtopped with water and shut down Route
40/45 upstream of the Route 40 and Kings Highway intersection.
(Zilinksi Dep. 63:11-65:2; Simmermon Dep. 156:12-157:9, 162:13163:4; Vanaman Dep. 304:21-305:15. See also, Woodstown Ex. 26,
Map REM 0000015.) Woodstown Mayor Mr. Pfeffer testified that
when Chestnut Run overtopped because of a blocked pipe it
created a lake effect and a subsequent surge of water in the
area of Route 40 and Kings Highway. (Pfeffer Dep. 84:22-91:5.)
E. Ms. Sylvestri’s Actions During Hurricane Irene
At around 1:00 a.m. on August 28, 2011, Ms. Sylvestri
called the 911 Emergency Center indicating she was trapped in
her car on Route 40 at the intersection of Kings Highway with

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water up to her neck. (Oliveto Dep 9:20-13:5; Woodstown Ex. 20,
“Sworn Statement of Daniel Cumming.”) Ms. Sylvestri had been
aware of the Salem County travel ban, as well as the State of
Emergency, but departed her home around 11 p.m. to visit a
friend. (Oliveto Dep. 28:18-29:6.) Detective Cumming who
responded on-scene to Ms. Sylvestri’s call, reported that “the
weather conditions throughout the evening prior to and during
the initial part of our response included heavy downpours of
rain and strong winds. Visibility was extremely low due to the
weather and darkness of night.” (Woodstown Ex. 21, Cumming
Report.) Mr. Cunning further stated, “upon arrival on scene, the
responders [State Police and Fire Department] encountered not
only the weather conditions, but what appeared to be flash
flooding of US 40.” (Id.) At the Route 40 intersection with
Kings Highway, the water had swelled above the bridge and was
covering around 100 yards of the roadway. (Id.) The depth of the
water at the deepest section was around three and a half feet.
(Id.)

Mr. Cunning also noted that when he had passed through

the area of Route 40 and Kings Highway earlier in the evening he
did not witness any flooding at that time. (Woodstown Ex. 20,
Sworn Statement of Daniel Cumming.) Due to the storm conditions,
emergency responders’ attempts to rescue Ms. Sylvestri failed
and she eventually drowned.

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F. Hurricane Floyd and Subsequent Amendments to the EAP
The last time the Dam overtopped was during Hurricane Floyd
in 1999. (Executive Director for Lower Township Municipal
Utilities Authority, Carl DeMercantonio Dep. 79:1-10.) During
that storm, the Dam’s floodgates were opened several days prior
to the storm. (Id.)

The goal was to reduce the water levels as

much as possible so that the rain had somewhere to go. Despite
their efforts, the Dam still overtopped. (Id.)
After Hurricane Floyd, the Borough of Woodstown began
repairs on Veterans Memorial Lake. (See Pl. Ex. 7,
Woodstown/Pilesgrove 000563.) Since the Dam was classified as a
“Significant Hazard Dam” at that time, Woodstown was required to
conduct regular safety inspections and provide reports to the
New Jersey Department of Environmental Protection’s Bureau of
Dam Safety (“The Department”). (N.J.S.A 58:4-1 et. seq; N.J.A.C.
7:20-1.11(c).) Woodstown received a letter in January, 2001 from
the Department indicating that because of the Dam construction,
the EAP from 1999 needed to be revised to include a dam breach
analysis and inundation mapping. (Pl. Ex. 7,
Woodstown/Pilesgrove 000563.) After Woodstown submitted a
revised EAP, a subsequent letter from Dam Safety indicated that
the “text portion of the EAP is acceptable as revised [but] . .

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. mapping provided is incomplete.” (Id, Woodstown/Pilesgrove
001760.)
The record shows that Woodstown was again contacted
repeatedly in February, March, July, and August 2007 because of
an overdue dam safety inspection report, which required
Woodstown to conduct a “visual dam safety inspection and submit
a detailed report on the findings.” (Id, Woodstown/Pilesgrove
000355, 000353, 000351, 000350.) The record does not indicate
whether a visual inspection report was ever submitted prior to
August 2011, but Mr. Vanaman testified that he reviewed and
updated the Borough’s overall Emergency Operations Plan in March
2011. (Vanaman Dep. 479:8-17.) Mr. Vanaman also testified that
he conducted two training sessions prior to Hurricane Irene,
instructing employees on opening the floodgates and how to
identify a Dam emergency condition under the EAP. (Vanaman Dep.
479:18-21.)
In July, 2011 Woodstown conducted an Engineer Analysis,
with “the intent to gather all existing information for the dam,
including previous studies that had been performed for areas
upstream and downstream of the site.” (Woodstown Ex. 16, “R & V
Report,” Woodstown/Pilesgrove 000018.) The information from the
studies was then used to develop models to determine potential
flooding impacts on downstream properties during both a 24-hour

14

and 100-year storm. (Id.) The results for both storm scenarios
indicated “that there will be not be any impacts to residential
homes below the dam.” (Id.) The Analysis also recommended the
Dam be reclassified from a Class II, “significant hazard” dam to
a Class III, “low hazard” dam. (Id; Pl. Ex. 19, “Hydrologic and
Hydraulic Analysis.”) Prior to Hurricane Irene, on August 9,
2011 the engineer who conducted the analysis sent an email to
Woodstown informing them that John Ritchey, from the Department
of Environmental Protection, preliminarily approved the
reclassification of the Dam to Class III. (Woodstown Ex. 14,
“Woodstown/Pilesgrove 000460.) The Dam was formally reclassified
as a class III dam a year later on August 22, 2012, removing the
requirement that Woodstown maintain an EAP for the Dam.
(Woodstown Ex. 15, Woodstown/Pilesgrove 000468, “Final Approval
letter;” Dalessio Dep. 143:9-144:5.)
III. STANDARD OF REVIEW

Pursuant to Fed. R. Civ. P. 56(c), a motion for summary
judgment will be granted if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine dispute as to
any material fact and that the moving party is entitled to
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477

15

U.S. 317, 322 (1986). “[S]ummary judgment may be granted only if
there exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party.” Miller v.
Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and
inferences must be construed in the light most favorable to the
non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346,
1349 (3d Cir. 1994).
In deciding a motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249. Credibility determinations are
the province of the factfinder, and thus at the summary judgment
stage credibility issues should be resolved against the moving
party. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992); Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he mere existence
of a scintilla of evidence,” without more, will not give rise to
a genuine dispute for trial. Anderson, 477 U.S. at 252. In the
face of such evidence, summary judgment is still appropriate
“[w]here the record . . . could not lead a rational trier of
fact to find for the nonmoving party.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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IV.

§ 1983 STATE-CREATED DANGER LEGAL STANDARD
The threshold question in any § 1983 lawsuit is whether the

plaintiff has sufficiently alleged a deprivation of a
constitutional right. Plaintiff’s claim invokes the substantive
component of the Due Process Clause of the Fourteenth Amendment,
which “protects individual liberty against certain government
actions regardless of the fairness of the procedures used to
implement them.” Collins v. City of Harker Heights, 503 U.S.
115, 125 (1992) (internal quotation marks omitted). As a general
rule, the failure of the state to protect a person against
private harm does not amount to a violation of the Due Process
Clause. See Martinez v. California, 444 U.S. 227, 284-85 (1980).
In DeShaney v. Winnebago Cty. Dept. of Social Services, 490 U.S.
189 (1989), the Supreme Court explained that “nothing in the
language of the Due Process Clause itself requires the State to
protect the life, liberty, property of its citizens against
invasion by private actors.” Id. at 195. Applying this
principle, the Court held that state social workers did not
deprive four-year-old Joshua DeShaney of substantive due process
when they failed to remove him from a physically abusive
household, despite their ongoing knowledge of suspected abuse by
his father. Id. at 201-02. The Court held that, “[a]s a general
matter . . . a State’s failure to protect an individual against

17

private violence simply does not constitute a violation of the
Due Process Clause.” Id. at 107; see also Bennett, ex rel.
Irvine v. City of Philadelphia, 499 F.3d 281, 289, 290 (3d Cir.
2007) (“If a municipality, state or other public body is to be
liable under the Constitution for harm caused by private parties
to persons not in custody, the liability would be unlimited.
There is no legal doctrine that supports imposition of such
liability . . . It is not the role of the courts, certainly not
the federal courts, to rectify failures . . . .”)
However, the DeShaney Court suggested that there may have
been a different result if the State played an active role in
creating or enhancing the danger to which Joshua was exposed.
See id. at 201 (“While the State may have been aware of the
dangers that Joshua faced in the free world, it played no part
in their creation, nor did it do anything to render him any more
vulnerable to them.”) Using this principle, the Third Circuit,
along with other circuits, has concluded that liability under §
1983 can be established when the state affirmatively puts a
person in a position of danger that the person would not
otherwise have been in, known as a “state-created danger.” For
instance, in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1997), the
court found the state had created a danger, for § 1983 purposes
when police officers stopped an obviously intoxicated pedestrian

18

walking home from a bar but then left her to go home alone in
cold weather; the woman subsequently fell down an embankment and
suffered brain damage. The Kneipp court held that such facts
established a violation of the plaintiff’s Fourteenth Amendment
substantive due process right and liberty interest in personal
security. Id.
In Bright v. Westmoreland Cty., 443 F.3d 276 (3d Cir.
2006), the Third Circuit laid out the elements a plaintiff must
show in order to successfully plead a state-created danger
claim:
1. The harm ultimately caused was foreseeable and fairly
direct;
2. A state actor acted with a degree of culpability that
shocks the conscience;
3. A relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable victim
of the defendant’s acts, or a member of a discrete class
of persons subjected to the potential harm brought about
by the state’s actions; and

V.

4. A state actor affirmatively used his or her authority in
a way that created a danger to the citizen or that
rendered the citizen more vulnerable to danger than had
the state not acted at all.
Id. at 281.

DISCUSSION
Plaintiff has suffered a grievous tragedy no mother should

have to bear. However, even giving all reasonable inferences to
Plaintiff, the facts as alleged do not indicate that this

19

tragedy was the result of a state-created danger. For the
reasons set forth below, this Court holds that Plaintiff has not
raised a genuine issue of material fact to counter either Salem
County or Woodstown Defendants’ Motions for Summary Judgment.
Based on the factual record as put forth, no reasonable factfinder could find that Defendants had acted in a manner that
satisfied all four elements of a state-created danger test.
Therefore, Plaintiff has not alleged a cognizable claim under §
1983.
A. Opening the Floodgates
The decision to open the floodgates does not amount to a
state-created danger because no reasonable juror could find that
Defendant’s actions shocked the conscience.
Plaintiff alleges in her Complaint that the decision to
open the floodgates without closing Route 40 or providing law
enforcement where Ms. Sylvestri was swept away was wrongful and
conscious shocking (Cl. ¶ 6). Defendants Woodstown and Salem
County argue that there is nothing in the record to establish
that the decision to open the floodgates was a wrongful
decision, let alone a conscience-shocking one. (Woodstown MSJ at
10; Salem County MSJ at 11.)

The Court finds Plaintiff fails to

raise a genuine issue over whether the Salem County or Woodstown

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Defendants consciously disregarded a great risk of serious harm
by deciding to open the floodgates during Hurricane Irene.
The Supreme Court has emphasized that the “touchstone of
due process” is protection against arbitrary government action.
Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (internal
quotation marks omitted). Government action is “arbitrary in the
constitutional sense,” id. at 846 (quoting Collins, 503 U.S. at
129), when it is “so egregious [and] so outrageous, that it may
fairly be said to shock the conscience.” Id. at 847 n.8; see
also United Artists Theatre Circuit, Inc. v. Twp. of Warrington,
316 F.3d 392, 399-400 (3d Cir. 2003) (“[O]ur cases have
repeatedly acknowledged that executive action violates
substantive due process only when it shocks the conscience.”).
The measure of what actions count as conscience shocking is
“no calibrated yard stick,” and is a highly fact-specific
inquiry. Kaucher v. Cty. of Bucks, 455 F.3d 418, 425 (quoting
Lewis, 523 U.S. at 847). Thus, “[actions] that shock in one
environment may not be so patently egregious in another.” Id.
But it is well established that negligent behavior can never
rise to the level of conscience shocking behavior. See Lewis,
523 U.S. at 849 ([L]iability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.”). On the other hand, there is no requirement that an

21

actor actually know his or her actions are “conscienceshocking.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 242 (3d
Cir. 2008). It is those actions that are “intended to injure in
some way unjustifiable by any governmental interest” that are
“most likely to rise to the conscience-shocking level.” Id.
(emphasis added). Acts that fall between these extremes of mere
negligence and harmful intent require courts to make “closer
calls,” based on a context-specific inquiry. Kaucher, 455 F.3d
at 426 (quoting Lewis, 523 U.S. at 849); Miller v. City of
Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999). See also, Estate
of Smith v. Marasco (Smith I), 318 F.3d 497, 508 (3d Cir. 2003)
(“[O]ur cases have repeatedly acknowledged . . . that the
meaning of [the shocks-the-conscience] standard varies depending
on the factual context.”).
Three possible standards of culpability can be used to
determine whether state action shocks the conscience: (1) intent
to cause harm; (2) deliberate indifference; or (3) gross
negligence or arbitrariness that indeed shocks the conscience.
Sanford v. Stiles, 456 F.3d 298, 306 (3d Cir. 2006).

The level

of culpability that is required to shock the conscience
increases as the time state actors have to deliberate decreases.
Sanford, 456 F.3d at 309. Plaintiff and Defendants disagree over
which level of culpability should apply; Plaintiffs argue for

22

“deliberate indifference,” Defendants for “gross negligence and
arbitrariness.” Because this Court holds no reasonable juror
could find that Defendants’ conduct was deliberately
indifferent, it need not reach the question of whether a higher
standard of culpability would be necessary to shock the
conscience here.
In the context of municipal liability, as is the case at
hand, the Supreme Court has defined deliberate indifference as a
more “stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of
his action.” Bd. of County Comm’rs v. Brown, 520 U.S. 397, 410
(1997) (emphasis added). While the Third Circuit does not
require “actual knowledge” to satisfy the deliberate
indifference standard, see Phillips v. Cty. of Allegheny, 515
F.3d at 242, the state actor’s conduct “must evince a
willingness to ignore a foreseeable danger or risk.” For
instance, in Kaucher, 455 F.3d 418, the court found that a
correctional facility’s alleged failure to take adequate
remedial and preventative measures to stop the spread of MRSA
within the facility did not rise to a level of deliberate
indifference that could be characterized as conscience shocking.
Id. at 27. The court found there was no evidence that the
defendants were either aware or recklessly unaware that their

23

remedial and preventative measures were inadequate to protect
their employees from infections. Id. at 28. The court noted the
following details in support of its decision: the jail was in
compliance with state standards, giving defendants reason to
believe the measures were adequate; only two of 170 corrections
officers tested positive for the infection; and the facility had
in place policies and procedures to ensure sanitary conditions
in the jail. Id. at 427. Thus, the court concluded that the
state actors believed their measures were adequate to protect
from infections, and thus did not “evince a willingness to
ignore a foreseeable danger.” Id; Phillips, 515 F.3d at 242.
Similarly, in Schieber v. City of Philadelphia, 320 F.3d
409, 422 (3d Cir. 2003) the court held that police officers were
not deliberately indifferent to a murder victim’s due process
rights for failure to enter a victim’s apartment in response to
a 911 call when the victim was still alive. In comparing other
state-created danger cases within the circuit, the court
determined that liability could only exist if the officers
“subjectively appreciated and consciously ignored a great, i.e.,
more than substantial, risk that the failure to break down [the
victim’s] door would result in significant harm to her.” Id. at
423 (emphasis added).

24

A Plaintiff can get around the subjective requirement of
the deliberate indifference standard if the risk of harm is
clearly obvious. See Phillips, 515 F.3d at 240–41 (citing
Sanford, 456 F.3d at 308, and explaining that deliberate
indifference may exist “without actual knowledge of a risk of
harm when the risk is so obvious that it should be known”). See
also, D.N. ex rel. Nelson v. Snyder, 608 F. Supp. 2d 615, 626
(M.D.Pa. 2006) (finding that a Township’s chief of police and
city manager should have known the potential for future harm
when they concealed a subordinate police officer’s use of a
department computer to view child pornography. “The risk (not to
mention the impropriety) of concealing such illegality was so
obvious that . . . [such action] is sufficient to meet the
‘shock the conscience’ standard.”)
In the present case, there is nothing in the record to show
that opening the floodgates posed such an “obvious” risk of harm
to drivers like Ms. Sylvestri at the Route 40 and Kings Highway
intersection. Nor does the evidence create any question as to
whether Defendants were consciously aware of such a risk and
chose to ignore it. No reasonable jury could find that either
the Woodstown or Salem County Defendants were actively aware, or
recklessly unaware, of the threat to drivers on Route 40 near
Kings Highway upon opening their floodgates because: (1) opening

25

the Dam’s floodgates was a necessary procedure to prevent the
Dam from overtopping; (2) the recent Engineer Analysis
classified the Dam as low hazard, meaning it did not predict any
disaster effects, and indicated a dam failure would not impact
residential highways such as Route 40; (3) the Inundation Map
predicting what areas would flood if the Dam overtopped did not
include Route 40 and Kings Highway; and (4) there was a countywide travel ban and a State of Emergency in place that prevented
drivers like Ms. Sylvestri from driving on the roads. Thus, Ms.
Sylvestri’s death regrettably was not a “known or obvious
consequence” to opening the floodgates. See Bd. of County
Comm’rs, 520 U.S. at 410.
First, and quite significantly, opening the floodgates was
a necessary protocol for relieving pressure from the Dam in
order to prevent overtopping or full dam failure. (Vanaman Dep.
238:15-16.) The Woodstown and Salem County emergency actors were
concerned about the Dam being able to withstand the pressure if
another dam upstream broke during the Hurricane, so they took
the only possible precaution in opening the floodgates. (Vanaman
Dep. 238:9-242:14; Pfeffer Dep. 80:23-84:11.) Opening the
floodgates created a reservoir so that the lake could absorb
extra water from the anticipated hurricane and potential dam
breaches from other dams. (Vanaman Dep. 234:12-236:14.) In a

26

storm just two weeks prior on August 14, 2011, the Defendants
had opened the floodgates to relieve pressure on the Dam and
experienced no flooding near Route 40. (Vanaman Dep. 245.) After
that storm, the Defendants held an informal critique discussing
how everything went when opening the Dam and whether any
improvements needed to be made. Id. No improvements were deemed
necessary. Id. With regards to Hurricane Irene, Mr. Vanaman, Mr.
Pfeffer, and Mr. Pompper collectively made the decision to open
the floodgates of the Dam, and each testified that they had no
knowledge that opening the floodgates would cause Route 40 near
King’s Highway to flood. (Pffefer Dep. 108:13-15; Pompper 62:1213, 110:1-10; Vanaman Dep. 47-48.).
Second, Defendants relied on a professional engineer
analysis to determine that opening the floodgate was a safe
measure that would not affect any residential areas or roadways
such as Route 40. The Engineer Analysis by Remington and
Vernick, which Woodstown received August 10, 2011, stated that
in the event of a 100-year or 24 hour storm with dam failure
there was no danger of “negative impacts to residential homes,
major highways or railroads.” (Woodstown Ex. 16, R & V report –
Woodstown/Pilesgrove/000018.) Just as the court in Kaucher, 455
F.3d at 427, found that the defendant jail’s compliance with
state standards gave it reason to believe that its measures were

27

adequate, in the instant case the Hydrologic and Hydraulic
analysis (the “Engineer Analysis”) of the Dam, which put
Defendants in compliance with the Dam Safety Act, gave
Defendants reason to believe that opening the floodgates during
Hurricane Irene was an adequate measure. The report additionally
recommended that the Dam be downgraded from a Class II
(Significant Hazard Potential) to a Class III dam (Low Hazard
Potential) based upon there being no contemplated disaster
effects from a dam breach. (Id.)
Based on these reports, the Defendants did not expect the
effects of opening the floodgates to be something they could not
control, or to extend to roadways such as the intersection of
Route 40 and Kings Highway. The Analysis examined the effects of
total dam failure, which releases significantly more water than
simply opening the floodgates. It was conducted by reputable
engineers just a few weeks prior to Hurricane Irene. For
Defendants to assume that there would be no significant harm to
Route 40 and Kings Highway intersection based upon this report,
even if Plaintiffs were able to prove correlation between
opening the floodgates and the severity of the flooding at Route
40, does not arise to the level of deliberate indifference. In
opening the floodgates, Defendants were simply not aware, nor

28

recklessly unaware, of any risk for them to deliberately
disregard.
Further, Defendants relied on the EAP for the Dam to infer
that the area near Route 40 and Kings Highway would not be
affected by flooding in the event of the Dam overtopping. The
inundation map for the Dam, which predicts areas to be affected
by the Dam overtopping, did not include Ms. Sylvestri’s location
in the anticipated flood-zones. (Woodstown Ex. 28, Inundation
Map.) Under the section titled, “Description of Inundated Area,”
the EAP for the Dam stated, “Undeveloped Salem River Flood
Plain. No residential or commercial structures or roadways are
within the inundation area.” (Woodstown Ex. 39, “Description of
Inundated Areas”) (emphasis added).
Finally, for several hours preceding and including the time
of Ms. Sylvestri’s drive through the severe storm, there was a
County-wide travel ban in place (Woodstown Ex. 18 “Travel Ban”),
along with Governor Christie’s State of Emergency (Executive
Order No. 73), which gave Defendants reason to believe no one
would be on the roads, especially in rural areas such as Route
40 and Kings Highway. This further reinforces the idea that
neither the Woodstown nor Salem County Defendants “subjectively
appreciated and consciously ignored” a risk of serious harm to

29

drivers at Route 40 by opening the floodgates. See Scheiber, 320
F.3d at 423.
Vanaman, Pfeffer, and Pompper were certainly aware of the
risks associated with opening the floodgates, for which they
took adequate safety precautions and emergency measures, mainly
in preparation for the flooding of Mill Street. There is no
evidence from which a reasonable jury could conclude that any of
these individuals were aware that the risks of opening the
floodgates could affect as far downstream as Route 40 and Kings
Highway; thus, such a result from opening the Dam’s floodgates
was not a risk for them to “subjectively appreciate and
consciously ignore.” See Schieber, 320 F.3d at 423. By opening
the floodgates Defendants were not disregarding any known risks,
but appropriately contemplating the greater danger if the Dam
overtopped and breached. This is the opposite of deliberate
indifference to a known risk of life-threatening flooding on
Route 40. The Court is thus compelled to conclude the evidence
is insufficient to permit a jury to find Defendants recognized
and deliberately disregarded the substantial risk of serious
harm to a person in a similar position as Ms. Sylevstri.
Plaintiff cannot show, nor does the record establish, that
Defendants’ action in opening the floodgate shocks the
conscience.

30

Plaintiff must allege facts demonstrating that she can
reasonably meet each of the four Bright factors to establish a
state-created danger. Plaintiff has failed to allege facts to
meet the second prong, conscience-shocking behavior, and so our
analysis can end there. Summary Judgment will be granted in
favor of both the Salem and Woodstown Defendants on this statecreated danger theory. Because this is Plaintiff’s only
allegation against the Salem County Defendants, those parties
are hereby dismissed from this case. Plaintiff asserts an
additional theory of liability under a state-created danger
claim against the Woodstown Defendants for failing to maintain
an adequate Emergency Action Plan for the Dam, which is analyzed
in the subsequent section.  
B.

Woodstown’s Failure to Adequately update the EAP

Plaintiff alleges that the Woodstown Defendants violated
her substantive due process rights by failing to maintain an
updated EAP. In granting summary judgment to Woodstown on this
claim, the Court need not look further than the first element of
the state-created danger claim. The record does not raise a
genuine question as to whether the harm was a “fairly direct”
result of Woodstown’s actions in not maintaining an updated EAP.
Thus Plaintiff has not adequately pled a state-created danger

31

claim and summary judgment will be granted in favor of the
Woodstown Defendants.
State actors are not liable every time their actions could
potentially set into motion a chain of events that result in
harm. The Supreme Court has explained for instance, that “[a]
legislative decision that has an incremental impact on the
probability that death will result in any given situation – such
as setting the speed limit at 55-miles-per-hour instead of 45 –
cannot be characterized as state action depriving a person of
life just because it may set in motion a chain of events that
ultimately leads to the random death of an innocent bystander.”
Martinez v. State of Cal., 444 U.S. 277, 281 (1980).
The crux of Plaintiff’s argument is exactly the kind the
Court in Martinez prohibited. Plaintiff alleges that had the
Borough of Woodstown updated the EAP following Hurricane Floyd,
then it would have known that opening the floodgates could cause
flooding to the area of Route 40 where Ms. Sylvestri drowned,
and as such prevented the timely closure of the road. (Pl.
Supplemental SMF ¶ 82-90; Pl. Opp. to Salem SMF, ¶ 1.)

But the

Court finds this is too attenuated a claim to convince a jury
that the failure to update the EAP was a “fairly direct” cause
of Ms. Sylvestri’s tragic death. Bright, 443 F.3d at 281
(emphasis added). In Morse v. Lower Merion Sch. Dist., 132 F.3d

32

902, 908 (3d Cir. 1997), the court held that school officials
permitting construction workers to leave the school’s rear
entrance unlocked was not the “fairly direct” cause of a fatal
shooting of a teacher by a trespasser. The court found that even
in spite of “previous security breaches by unnamed persons” and
knowledge that the assailant had been loitering in the school
area the week before the shooting, this was not enough to warn
officials that the person would enter the school in search of
this victim. Id.

The school’s actions, the court concluded,

were not the “catalyst for the attack” on the teacher because
“[t]he causation, if any, [was] too attenuated.” Id. at 909-10;
cf L.R. Sch. Dist. of Philadelphia, No. 14-4640, 2016 WL
4608133, at *5 (3d Cir. September 6, 2016) (finding that it was
foreseeable that a teacher releasing a five-year-old student in
her custody to a stranger could result in harm to the child
based on experience as a teacher and basic common sense).
Here too, there are too many attenuated variables to find
that Woodstown’s failure to update the EAP was the “catalyst”
for Ms. Sylvestri’s death. Even if Plaintiff could show that
opening the floodgates did indeed cause the flooding at the
Route 40 intersection, which the experts on each side dispute,
there is nothing in the record to support a juror finding that
changes in the EAP would have created a different outcome. There

33

is no evidence of causation because: (1) the Woodstown
Defendants did not have the jurisdiction to close the area of
Route 40 where Ms. Sylvestri drowned; (2) if Defendants did not
open the floodgates, the Dam would have overtopped causing
greater flooding; (3) Defendants had to weigh many competing
factors in deciding how to allocate limited emergency resources;
and (4) the potential effects from the failure to update the EAP
after Hurricane Floyd were cured prior to Hurricane Irene.
It is undisputed that the Woodstown Defendants did not have
the authority to close the road themselves. The area of Route 40
where Ms. Sylvestri drowned was not located within the Borough
of Woodstown, (See Pl. Ex. 11 “Inundation Map;” Woodstown Ex. 26
Map; Woodstown Ex. 33 Map) and Route 40 is a State highway under
the jurisdiction of the New Jersey State Police. (Woodstown SMF
¶ 85; Pompper Dep. 105:23-106:17; 115:1-115:15.)
Since the State police during Hurricane Irene knew that
Route 40 was flooded, any updates to the EAP to include the fact
that the area had flooded during Hurricane Floyd would not have
made a difference. After the floodgates had been opened, the
State police knew that Route 40 was affected and took what they
believed to be appropriate measures. At 9:43 p.m. on August 27,
2011, Sergeant Miller reported that the State police would close
the Route 40 Bridge east of Kings Highway “within the next four

34

hours.” (Woodstown Ex. 19, “Phone Message from Sergeant Jay
Miller of New Jersey State Police.”) Sergeant Miller testified
that even if the police had known earlier that flooding would
occur in that area, they would have had no way to block the
highway. (Statement of Jay Miller 6:5-8.) New Jersey State
Police Detective Daniel Cunning noted in his report that, “the
weather conditions throughout the evening prior to and during
the initial part of our response included heavy downpours of
rain and strong winds. Visibility was extremely low due to the
weather and darkness of the night.” (Woodstown Ex. 21, “Cunning
Report.”) The State police had even requested barriers to close
the road, but were denied because the high winds would turn the
cones and signage into dangerous projectiles. (Id. at 4:7-18.)
Thus, the State police, along with Woodstown and Salem, relied
on Salem County’s travel ban issued on August 27, 2011
(Woodstown Ex. 18 “Travel Ban”) and Governor Christie’s state of
emergency issued on August 25, 2011 (Executive Order No. 73) to
keep drivers off the roads. (Pompper Dep. 125:6-125:18;
Woodstown Ex. 18, “Travel Ban.”) Any updates to the EAP
regarding Route 40’s potential flooding would not have changed
the State Police’s actions.
Further, even if Woodstown had jurisdiction to close the
road (which they undisputedly did not), its decision as to how

35

to allocate its resources during an emergency requires careful
policy determinations. The Woodstown Defendants had a “host of
policy choices” to make, both before and during Hurricane Irene.
See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 129
(1992) (declining to find a state-created danger liability when
a city sanitation department employee died of asphyxia despite
the defendant city knowing of the existence of noxious gases in
the sewer system because such a decision as to warn or train its
employees about such hazards is part of a “host of policy
choices that must be made by locally elected representatives,
rather than by federal judges.”) The decision to update an
Emergency Plan and what criteria to look for in declaring an
emergency requires careful consideration of many competing
factors. Given the myriad of considerations, there is no
evidence that Woodstown would have even had the ability to
provide emergency coverage to that area.
The flooding of Route 40 near Kings Highway was by no means
the only dangerous situation near the Borough or County at the
time. (See Pfeffer Dep. 152:6-3 (estimating at least fifty other
similar opportunities for a disaster to occur in the county at
the same time.”); Simmermon Dep. 25 (explaining how the
Woodstown police were continuously responding from one emergency
to the next); Statement of Jay Miller 3:20-21 (“[Woodstown] was

36

just answering calls for service and doing the best they could
to address everything that happened during the emergency.”)
Woodstown acknowledges that resources were limited and that
there was no way they could provide emergency coverage for every
situation. (See Pfeffer Dep. 151-52 (“How can we in the midst of
this horrible storm, with flooding everywhere, evaluate one
instance of flooding and say [ ] we’re going to lose a life
there, we better block it off. How do we make that decision
based on every other road that’s flooded and washed out?”)).
They relied on the travel ban to keep people off the roads, and
the Woodstown Borough put up tape, cones, and barricades to keep
everyone out of known flooded areas in the Borough. (Vanaman Dep
141:1-7; 147:1-14.) Woodstown further established the firehouse
as a reception center for evacuated persons (Vanaman Dep.
157:11-24) and helped evacuate three people whose homes were
flooded with water from a failed dam upstream. (Vanaman Dep.
226.) Woodstown Police were patrolling continuously, looking for
flooded roadways, anyone in distress and other hazards created
by the storm. (Zilinski Dep. 24:13-18.) After the State
Emergency was issued, Detective Zilinski testified that there
was almost zero traffic on the roads. (Zilinski Dep. 113:1-14.)
Given the many emergencies, even if Woodstown had updated the
EAP to put all parties on notice that flooding might occur at

37

the Route 40 and Kings Highway intersection, Plaintiff cannot
show that Woodstown would have even had the resources available
to accommodate that area.
Finally, while there may not have been an immediate update
to the EAP following Hurricane Floyd, this was eventually cured
and did not cause any lasting inadequacies in the EAP. The
Emergency Operation Plan (“EOP”) for the Borough of Woodstown
was updated prior to Hurricane Irene. Mr. Vanaman as the
Emergency Management Coordinator for the Borough, testified that
he reviewed and updated the EOP in March 2011. (Vanaman Dep.
479:8-17.) Mr. Vanaman did not choose to update the Emergency
Action Plan for Veterans Memorial Lake, because “if something in
this document did not need to be updated, it stayed the same as
it was before.” (Vanaman Dep. 479:18-21.) Mr. Vanaman also
conducted at least two training sessions prior to August 2011,
training employees on opening the floodgates and determining if
a dam was in an advisory, warning, or emergency condition.
(Vanaman Dep. 167:12-24; 221:16-223:27.) Additionally, the
Engineer Analysis, which predicted no impact to residential
roadways, was conducted prior to Hurricane Irene and satisfied
the requirement that Woodstown conduct a “visual dam safety
inspection” pursuant to N.J.A.C. 7:20-1.11(c).

38

The Court thus finds no reasonable juror could determine
that updating the EAP prior to Hurricane Irene would have had
any material impact on Woodstown’s actions. Plaintiff can
therefore not establish that the Woodstown Defendants’ actions
were the “catalyst” for Ms. Sylvestri’s death, and her statecreated danger claim will fail. Summary Judgment will further be
granted in favor of the Woodstown Defendants on this claim and
those parties are dismissed.

VI.

CONCLUSION

The Supreme Court has counseled a restrained approach in

the area of substantive due process. Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992). Heeding this advice, the
DeShaney Court declined to expand its substantive due process
jurisprudence even in the face of tragic circumstances,
explaining that:
[t]he people ... may well prefer a system of liability
which would place upon the State and its officials the
responsibility for failure to act in situations such as the
present one. They may create such a system, if they do not have
it already, by changing the tort law of the State in accordance
with the regular lawmaking process. But they should not have it
thrust upon them by this Court's expansion of the Due Process
Clause of the Fourteenth Amendment.
489 U.S. at 203.
Again, in Cty. of Sacramento v. Lewis, the Court said that
the Constitution cannot “impos[e] liability whenever someone

39

cloaked with state authority causes harm,” 523 U.S. 833, 848
(1998), emphasizing that the courts should hold responsible
“only the most egregious official conduct.” Id. at 846.
Under our state-created danger jurisprudence, this Court
cannot find that the Woodstown or Salem County Defendants’
decision to open the flood gates, or the Woodstown Defendants’
alleged failure to update the EAP, amounts to a state-created
danger. For the foregoing reasons, the respective Summary
Judgment Motions for the Salem County and Woodstown Defendants
are granted. Plaintiff’s state-created danger claim is hereby
dismissed. An appropriate Order follows.

November 10, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

40