LIPSCOMB v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE et al
MEMORANDUM AND/OR OPINION RE: MOTIONS TO DISMISS. SIGNED BY HONORABLE HARVEY BARTLE, III ON 2/27/2013. 2/27/2013 ENTERED AND COPIES E-MAILED.(tomg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WAYNE S. LIPSCOMB
PENNSYLVANIA BOARD OF PROBATION :
AND PAROLE, et al.
February 27, 2013
The plaintiff in this action is Wayne S. Lipscomb, the
Administratrix of the Estate of Moses Walker, Jr. ("Walker").
According to the complaint, Walker, a Philadelphia police
officer, was killed tragically in the early morning hours of
August 18, 2012 by Rafael Jones ("Jones") while Walker was
waiting for a bus after the conclusion of his shift.
parolee, had attempted to rob Walker at gunpoint.
The defendants are the Pennsylvania Board of Probation
and Parole ("PBPP"), Michael C. Potteiger ("Potteiger"), its
Chairman, as well as Jose Rodriguez ("Rodriguez"),1 Rosa
Hernandez ("Hernandez"), and Michelle Rivera ("Rivera"), who were
All the individuals were sued in their official
and individual capacities.
Plaintiff has brought claims under 42 U.S.C. § 1983 as
well as under the Pennsylvania Constitution and wrongful death
1. Plaintiff's complaint incorrectly identifies Juan Rodriguez.
The defendant's proper name is Jose Rodriguez.
and survival statutes.
Liability under § 1983 is premised on the
theory that defendants caused a state-created danger.2
Before the court is the motion of defendants PBPP and
Potteiger to dismiss the complaint as well as a similar motion of
Defendant Hernandez has also filed a
response stating that she does not oppose Rodriguez's motion and
requesting also to be dismissed from the action if the court
We will treat her request as a motion to
After receipt of defendants' motions, plaintiff agreed
to dismiss the action against PBPP and the action against
Potteiger and Rodriguez in their official capacities and all
state law claims against Potteiger and Rodriguez in their
Since plaintiff has not responded as to
Hernandez, we will assume that plaintiff is treating her as she
has Potteiger and Rodriguez.
That leaves for decision only the
§ 1983 claim against Potteiger, Rodriguez, and Hernandez in their
For present purposes, we must accept all well-pleaded
facts as true.
In 2007, Jones was sentenced for carrying a
firearm without a license to two to four years in prison by a
Title 42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured.
Pennsylvania court to be followed by three years' parole.
served his maximum prison sentence and was released on
October 16, 2011.
His parole began on that day.
2012, while on parole Jones was arrested and charged with robbing
a man at gunpoint in the Germantown section of Philadelphia.
case was dropped after the victim failed to appear.
On July 25, 2012, as a result of the arrest, Jones was
brought before a judge in the Court of Common Pleas of
Philadelphia County for a parole hearing.
During the hearing,
the judge told Jones and Rodriguez, who was the parole agent
assigned to Jones, that she would show no leniency regarding
weekly drug tests to which she was ordering Jones to submit.
stated, "[t]here will be no positives, Mr. Jones... One positive,
Agent Rodriguez, you drop the detainer."
She added, "[w]ith your
record, you cannot afford to think that you still make the rules.
You do not.
Agent Rodriguez does.... So, unless you enjoy
spending your years behind bars, it's time to get it together."
The judge ordered Jones released under the supervision of
Rodriguez and PBPP but subject to house arrest under electronic
monitoring for a period of six months.
Although a telephonic "landline" is necessary at the
home of a parolee for the implementation of electronic
monitoring, Jones was released to a home that did not contain a
such a telephone.
Jones was given two weeks to have one
installed so that the electronic monitoring condition of his
parole could be carried out.
Jones did not have a landline
installed and was not being electronically monitored as of August
18, 2012, when he killed Officer Walker.
On August 10, 2012, Jones further violated the terms of
his parole because of a positive drug test.
As a result,
Rodriguez requested an arrest warrant on August 15, 2012 from his
supervisors, defendants Hernandez and Rivera, who denied the
Three days later, Jones killed Officer Walker in the
course of attempting to rob him.
In their respective motions to dismiss, defendants
argue that the complaint does not state facts, even if true, that
can support liability against them under § 1983 for the death of
Walker based on a state-created danger.
In Mark v. Borough of
Hatboro, 51 F.3d 1137 (3d Cir. 1995), our Court of Appeals
declared that a state actor can be held responsible under § 1983
for a state-created danger only if a four part test is satisfied:
(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; (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.
Id. at 1152.
We first focus on the third requirement of the test
that there must have existed some relationship between the state
and Walker, the plaintiff's decedent.
What constitutes the
necessary relationship in § 1983 actions has been the subject of
a number of decisions by the Supreme Court and our Court of
The Supreme Court dealt with the issue in Martinez v.
There, the complaint alleged that the state of
California had released on parole a person who had been convicted
of attempted rape.
444 U.S. 277, 279 (1980).
He had been
committed to a state mental hospital and then sentenced to twenty
years in state prison.
After five years, he was released on
parole and five months later killed a young girl.
Id. at 279-80.
In upholding the dismissal of the complaint against the state as
not stating a claim under § 1983, the Supreme Court explained:
Her life was taken by the parolee five months
after his release. He was in no sense an
agent of the parole board. Further, the
parole board was not aware that appellants'
decedent, as distinguished from the public at
large, faced any special danger. We need not
and do not decide that a parole officer could
never be deemed to "deprive" someone of life
by action taken in connection with the
release of a prisoner on parole. But we do
hold that at least under the particular
circumstances of this parole decision,
appellants' decedent's death is too remote a
consequence of the parole officers' action to
hold them responsible under the federal civil
Id. at 285 (emphasis added) (citation and footnotes omitted).
Following Martinez, our Court of Appeals decided
Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir.
In that case, a prisoner escaped from jail and killed a
The executor of the couple's estate sued the
prison and county officials under § 1983.
The complaint alleged
that they knew about inadequate security at the jail and failed
to remedy the situation.
dismissal of the claim.
The court affirmed the district court's
Plaintiff argues that defendants' maintenance
of the jail in a condition which made escape
likely and the placement of Slingerland, a
particularly dangerous prisoner, in that jail
when it was in an unsafe condition created a
situation that posed an immediate threat to
the life and safety of individuals, such as
the Lents, who resided in the community
surrounding the jail. Plaintiff makes a
sympathetic argument. It must fail because
the residents in the communities surrounding
the jail are part of the "public at large",
referred to in Martinez, 444 U.S. at 285.
They cannot reasonably be characterized as
individuals who defendants knew "faced any
special danger." Id.
Id. at 16.
Several years later, the Supreme Court focused on the
state-created danger theory for liability under § 1983 in
DeShaney v. Winnebago County Dep't of Social Services, 489 U.S.
There, a four-year-old boy in Winnebago County,
Wisconsin was severely beaten by his father, with whom he lived.
Id. at 192-93.
The boy's father finally beat him so severely
that he suffered permanent brain damaged and was profoundly
Id. at 193.
The county's department of
social services ("DSS") had previously received various
complaints that the boy was a victim of child abuse and took some
steps to protect him, but it did not remove him from his father's
Id. at 192-93.
The boy and his mother sued the county,
DSS, and various individual DSS employees under § 1983.
Plaintiffs alleged that the defendants had violated the boy's
rights under the substantive component of the Due Process Clause
by failing to intervene to protect him against a risk of violence
of which they knew or should have known.
Id. at 193.
The Supreme Court in upholding the dismissal of the
complaint concluded that the state played no part in the creation
of the dangers that the boy faced nor did it do anything to
render him more vulnerable to such dangers.
Id. at 202.
Court did recognize that where special relationships are created
or assumed by the state, certain constitutional rights may be
implicated, and the state has an affirmative obligation to
provide protective services.
Id. at 198-99.
For example, such
duties arise where a person is a prisoner or has been
involuntarily committed to a mental facility.
Id. at 199-200.
Other than in limited circumstances of this nature, the
Court explained that "nothing in the language of the Due Process
Clause itself requires the State to protect the life, liberty,
and property of its citizens against invasion by private actors."
Id. at 195.
The Court observed that the language of the Due
Process Clause "cannot fairly be extended to impose an
affirmative obligation on the State to ensure that those
interests do not come to harm through other means."
no special relationship existed between the boy and the State, it
had no constitutional duty to protect him.
As previously noted, our Court of Appeals addressed the
state-created danger theory in Mark v. Borough of Hatboro, 51
F.3d 1137, 1138 (3d Cir. 1995).
In that case, William Marley
("Marley"), a member of the Enterprise Fire Company
("Enterprise"), a volunteer fire company in the Borough of
Hatboro, Pennsylvania (the "Borough"), set fire to and destroyed
an automobile repair business owned by the plaintiff.
The plaintiff sued Marley, Enterprise, the Borough, and
several Borough employees under 42 U.S.C. § 1983 for damages
resulting from the arson.
Id. at 1140.
Our Court of Appeals
affirmed the grant of summary judgment in favor of Enterprise and
the Borough and held that they could not be held responsible
under § 1983.
When the alleged unlawful act is a policy
directed at the public at large -- namely a
failure to protect the public by failing
adequately to screen applicants for
membership in a volunteer fire company -- the
rationale behind the rule disappears -- there
can be no specific knowledge by the defendant
of the particular plaintiff's condition, and
there is no relationship between the
defendant and the plaintiff.
Id. at 1153.
In Kneipp v. Tedder, the Court of Appeals reiterated
that the "state-created danger" theory is a "viable mechanism for
establishing a constitutional violation" under § 1983.
1199, 1201 (3d Cir. 1996).
There, the parents of Samantha Kneipp
("Kneipp") alleged that late on a January evening, when Kneipp
was in an obvious state of severe inebriation, police officers
stopped her and her husband while her husband was attempting to
bring her to their nearby apartment.
Id. at 1201.
While she was
being disruptive, they told her husband that he could leave to go
home to relieve the babysitter.
Kneipp was found unconscious.
Id. at 1202.
Id. at 1203.
A few hours later,
hypothermia, which caused a decrease in the amount of oxygen
delivered to her brain.
This resulted in permanent brain
damage impairing many basic bodily functions.
parents sued the City of Philadelphia and several police officers
under § 1983 on the ground that the officers were aware of
Kneipp's intoxication, assumed responsibility for her protection
when they told her husband he could leave, affirmatively created
a danger when they later abandoned her, and made her more
vulnerable by interfering with the efforts of her husband to
bring her to safety.
The Court of Appeals found that the "special
relationship" required by the third element of a state-created
danger claim as outlined in Mark was present under these
circumstances and accordingly reversed the district court's grant
of summary judgment in favor of the defendants.
Here it is alleged that Officer Tedder,
exercising his powers as a police officer,
placed Samantha in danger of foreseeable
injury when he sent her home unescorted in a
visibly intoxicated state in cold weather. A
reasonable jury could find that Officer
Tedder exerted sufficient control over
Samantha to meet the relationship
Id. at 1209.
It further explained, "[t]he relationship
requirement under the state-created danger theory contemplates
some contact such that the plaintiff was a foreseeable victim of
a defendant's acts in a tort sense."
Id. at 1209 n.22.
The Court of Appeals elaborated on the standard set
forth in Kneipp in Morse v. Lower Merion School District, 132
F.3d 902 (3d Cir. 1997).
There, a teacher was shot and killed in
front of a classroom of children.
Id. at 904.
Her husband, as
executor of her estate, claimed in his lawsuit under § 1983 that
the school district had deprived the teacher of her right to be
free from physical harm by leaving a back entrance to the school
Citing Martinez and Mark, the court reiterated
that the state-created danger theory of liability does not extend
to "those instances where the state actor creates only a threat
to the general population."
Id. at 913.
The court noted that a
state-created danger is implicated in an action under § 1983 only
where the conduct of the state actor has created a danger to a
"discrete plaintiff" or to a "discrete class of plaintiffs."
As in other situations, courts must often draw lines in
deciding when a threat is to the general population as opposed to
a discrete class of plaintiffs.
In Morse, the Court of
Appeals did not reach that question but upheld the dismissal of
the complaint on other grounds.
Plaintiff in the pending action does not argue that the
state-created danger was directed specifically at Walker.
we do not have before us a situation such as occurred in Kneipp.
Instead, she contends that the danger was directed at a discrete
class of persons of whom Walker was a part as "a police officer
acting in the line of duty who could be expected to draw his
weapon in an effort to protect and serve the public when
confronted with a violent felon wielding a loaded gun."
We disagree that the complaint describes any threat
directed at a discrete class of people, in this case police
To the extent Potteiger, Rodriguez, or Hernandez acted
to cause a danger as a result of Jones' presence on the street,
they caused a threat to the general population.
There is no
allegation that Potteiger, Rodriguez, or Hernandez did anything
which made Jones a special danger to a specific group such as the
police or that Jones was more likely to cause harm to a discrete
class of people than to the public in general.
inference can be drawn that Jones while on parole was more
inclined to target police officers as his victims than anyone
else in Philadelphia or beyond.
If anything, it is more probable
than not that Jones would shy away from encounters with law
enforcement officials as a group.
Significantly, the complaint
does not aver that Walker was in uniform at the time of his death
or that Jones otherwise knew that he was a police officer.
In sum, assuming that all the other elements necessary
for a § 1983 action against Potteiger, Rodriguez, or Hernandez
have been satisfied, any threat they created was to the general
population and not simply to a discrete individual or discrete
class of individuals.
Morse, 132 F.3d at 913.
plaintiff may not go forward with her complaint under § 1983
against Potteiger, Rodriguez, or Hernandez.
We reiterate that the death of Officer Moses Walker,
Jr. was indeed a tragedy.
Nonetheless, Potteiger, Rodriguez, and
Hernandez, as state actors, may not be held liable for his death
under the circumstances alleged.
The motions of Potteiger,
Rodriguez, and Hernandez to dismiss the complaint will be
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