RANKINS et al v. BRISTOL TOWNSHIP

Filing 11

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 5/31/17. 5/31/17 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RAKEEM RANKINS, et al.
v.
BRISTOL TOWNSHIP

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CIVIL ACTION
No. 16-5525

MEMORANDUM
Juan R. Sánchez, J.

May 31, 2017

Ebony Capri Talley and her five-year-old daughter R’Mani Rankins were brutally
murdered by Marcel Johnson, an associate of Talley, in November 2013. Rakeem Rankins,
R’Mani’s father, and Pearline Davis, Talley’s mother, individually and as administrators of their
daughter’s estates, bring this civil rights action, pursuant to 42 U.S.C. § 1983, asserting claims
for violations of their daughters’ Fourteenth Amendment rights under a state-created danger and
municipal liability. The Township moves to dismiss this action pursuant to Federal Rule of Civil
Procedure 12(b)(6). Because Plaintiffs have failed to sufficiently plead any of the necessary
elements of a state-created danger claim and have failed to plead the existence of an
unconstitutional custom or policy, a prerequisite for the imposition of municipal liability, the
Court finds dismissal is warranted. Plaintiffs’ Complaint will be dismissed without prejudice.
BACKGROUND1
In November 2013, Johnson murdered Ebony Capri Talley2 and her five-year-old
daughter, R’Mani Rankins by stabbing them and then setting them on fire inside their apartment.
Johnson was subsequently convicted of both murders.
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The following facts are from Plaintiffs’ Complaint, the allegations of which the Court accepts
as true for purposes of deciding the instant motion. See Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (holding a court considering a Rule 12(b)(6) motion to dismiss should “assume the[]
veracity” of the Complaint’s “well-pleaded factual allegations”).
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In December 2014, Rakeem Rankins, R’Mani’s father, learned that at the time of the
murder, Talley and Johnson were under investigation by the Township for drug trafficking. As
part of the investigation, the Bristol Borough Police Department had been gathering evidence,
including video and audio surveillance recorded by a government informant, of Talley and
Johnson engaging in drug transactions. The informant also engaged in drug transactions with
Talley. Some of the drug transactions captured and facilitated by the informant occurred while
R’Mani was present. Plaintiffs allege that by conducting this investigation of Talley, the
Township created a danger, or increased the risk of danger, to both Talley and R’Mani, and
ultimately caused their deaths.
DISCUSSION
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In evaluating a Rule 12(b)(6) motion, a court first must separate the legal and
factual elements of the plaintiff’s claims, accepting the well-pleaded factual allegations as true
and disregarding any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). The court “must then determine whether the facts alleged in the complaint are sufficient
to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at
679). A claim is facially plausible when the facts pleaded “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. A court may consider matters of public record in deciding a motion to dismiss. See Schmidt
v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

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At the time of her murder, Talley was pregnant.
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To state a § 1983 claim, a plaintiff must allege the defendants, “acting under color of
state law deprived him . . . of a right secured by the Constitution or the law of the United States.”
Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Here, Plaintiffs allege the Township
violated their daughters’ Fourteenth Amendment substantive due process rights under the “statecreated danger” doctrine.
The state-created danger doctrine is an exception to the general rule that “[a] state’s
failure to take affirmative action to protect a victim from the actions of a third person will not, in
the absence of a custodial relationship between the state and the victim, support a civil rights
claim.” Brown v. Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. 1990) (citing DeShaney v.
Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189 (1989)). Under the state-created danger
doctrine, a due process violation may “occur when state authority is affirmatively employed in a
manner that injures a citizen or renders him ‘more vulnerable to injury from another source than
he or she would have been in the absence of state intervention.’” Bright v. Westmoreland Cty.,
443 F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir.
2003)). To plead a state-created danger claim, a plaintiff must allege
(1) the harm ultimately caused to the plaintiff was foreseeable and
fairly direct; (2) the state-actor acted in willful disregard for the
plaintiff's safety; (3) there was some relationship between the state
and the plaintiff; and (4) the state-actor used his authority to create
an opportunity for danger that otherwise would not have existed.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008); see also Bright, 443 F.3d at 281.
For purposes of the first element, harm is foreseeable when there is “an awareness on the
part of the state actors that rises to the level of actual knowledge or an awareness of risk that is
sufficiently concrete to put the actors on notice of the harm.” Phillips, 515 F.3d at 238; see K.S.S.
v. Montgomery Cty. Bd. of Comm’rs, 871 F. Supp. 2d 389, 400 (E.D. Pa. 2012) (“[H]arm is

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foreseeable when a state actor has actual awareness, based on concrete information, of a risk of
harm to an individual . . . such that the actor is on notice that his or her act or failure to act
significantly enhances the risk of harm.” (citation omitted and omission in original)). Moreover,
to determine whether the harm is fairly direct, the court considers whether the harm “occurs to an
identifiable or discrete individual under the circumstances” or merely “to a ‘random’ individual
with no connection to the harm-causing party.” Phillips, 515 F.3d at 239. “This inquiry
essentially asks whether the alleged misconduct and the harm caused were ‘too attenuated’ to
justifiably hold the defendant liable.” D.N. ex rel. Nelson v. Snyder, 608 F. Supp. 2d 615, 625
(M.D. Pa. 2009) (citing Phillips, 515 F.3d at 238).
To sufficiently plead the second element of a state-created danger action—state action in
willful disregard of the plaintiff’s safety—a plaintiff must allege that the state actor acted with a
degree of culpability that “shocks the conscience.” Bright, 443 F.3d at 281. There is “no
calibrated yard stick” to measure what actions shock the conscience, and “the exact degree of
wrongfulness necessary . . . depends upon the circumstances of a particular case.” Kaucher, 455
F.3d at 435-36 (3d Cir. 2006). This element may be satisfied by allegations showing the state
action acted with “(1) deliberate indifference; (2) gross negligence or arbitrariness that indeed
shocks the conscience; or (3) intent to cause harm.” Phillips, 515 F.3d at 241.
The third element of a state-created danger claim requires a plaintiff to plead a
relationship between the state and the plaintiff “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.” Bright, 443 F.3d at 281. Such a relationship exists where
there is “some contact such that the plaintiff was a foreseeable victim of the defendant’s acts in a
tort sense.” Kneipp v. Tedder, 95 F.3d 1199, 1209 n.22 (3d Cir. 1996).

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Finally, a plaintiff must allege “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.” Bright, 443 F.3d at 281. To satisfy this final element, the
plaintiff must allege (1) a state actor exercised his or her authority; (2) the state actor took an
affirmative action; and (3) this affirmative act created a danger to the citizen or rendered the
citizen more vulnerable to danger than if the state had not acted at all. See Ye v. United States,
484 F.3d 634, 639 (3d Cir. 2007)). This element requires allegations of “misuse of state
authority, rather than a failure to use” state authority. Bright, 443 F.3d at 282. “But a specific and
deliberate exercise of state authority, while necessary[,] . . . is not sufficient. There must be a
direct causal relationship between the affirmative act of the state and the plaintiff’s harm.”
Kaucher, 455 F.3d at 432. Thus, to satisfy this element, a plaintiff must allege “the state’s action
was the ‘but for cause’ of the danger faced by the plaintiff.” Id. (emphasis added).
Here, Plaintiffs allege, in essence, that the Township created a danger to a five-year-old,
R’Mani, or increased her vulnerability to danger, by conducting its investigation of Talley—
including surveilling Talley and using an informant to engage in drug transactions—in R’Mani’s
presence and in the presence of Johnson, her murderer. Plaintiffs further allege the Township
placed Talley in danger by successfully recommending that she receive a reduced sentence and
probation period, which the Township sought to further its investigation of Johnson, and by
failing to arrest Talley when the Township had gathered sufficient evidence to do so from its
investigation of her. Plaintiffs’ allegations fail to state a claim of state-created danger.
Plaintiffs have failed to sufficiently plead the existence of any of the four elements of a
state-created danger as to R’Mani. As to the first element, foreseeability and directness of harm
to the plaintiff, Plaintiffs allege that the Township placed R’Mani in danger of being murdered

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by Johnson by investigating her mother, Talley, while R’Mani was present. Plaintiffs, however,
plead no actions or occurrences that took place during the course of its investigation, including
its surveillance of Talley and the drug transactions it engaged Talley in, which would have
provided the Township any notice that R’Mani might ultimately be harmed by Johnson. And the
mere fact that R’Mani was present during drug transactions does not support a reasonable
inference that it was foreseeable to the Township that Johnson would murder her. Plaintiffs have
also failed to allege that the harm to R’Mani was “fairly direct” to the Township’s surveillance of
Talley. Rather, any link between the Township’s investigation of Talley and the tragic death of
R’Mani at the hands of Johnson is too attenuated to hold the Township liable.
Plaintiffs also fail to allege any conduct by the Township that shocks the conscience.
Plaintiffs do not allege that conducting a drug trafficking investigation or using an informant is
inherently conscience-shocking, only that doing so in the presence of a five-year-old is. While
the Court is troubled by allegations that the Township used an informant to engage Talley in
drug transactions while her five-year-old daughter was present—and finds such conduct could
raise an inference of the Township’s deliberate indifference toward potential harm to R’Mani—
Plaintiffs’ general and conclusory allegations, without more, are insufficient to raise an inference
of deliberate indifference, gross negligence, arbitrariness, or intent to do harm on the part of the
Township.
Plaintiffs fail to allege a relationship between R’Mani and the Township. R’Mani’s mere
presence while an informant engaged in drug transactions with Talley fails to establish the
requisite contact contemplated by the relationship requirement. And Plaintiffs’ allegations that
the Township conducted its investigation while R’Mani was present do not place her in a discrete
class of persons subjected to potential harm brought about by the investigation. Indeed,

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allegations that R’Mani was present at drug transactions facilitated by an informant do not
support the inference that she was a foreseeable victim of a murder that occurred wholly
independent of the Township’s investigation. Plaintiffs allegations are thus insufficient to
establish a relationship between the Township and R’Mani.
Finally, Plaintiffs fail to sufficiently plead the Township used its authority to create an
opportunity for endangering R’Mani that otherwise would not have existed. For one, there is no
indication from Plaintiffs’ allegations that the Township’s investigation or any other action taken
by the Township increased the risk Johnson would harm R’Mani. R’Mani’s presence during drug
transactions and exposure to Johnson occurred independently of the Township’s investigation.
Plaintiffs do not allege otherwise. More importantly, Plaintiffs do not plead that the affirmative
acts of the Township in investigating Talley were the but for cause of R’Mani’s death. Instead,
the danger facing R’Mani resulted from affirmative actions taken by Johnson, her murderer, not
the Township.
Plaintiffs have also failed to sufficiently plead any of the four elements of a state-created
danger as to Talley. In addition to alleging the Township investigated and surveilled Talley,3
Plaintiffs allege that the Township placed her in danger by recommending “reduced/lesser
sentences” and “reduced probationary periods” so the Township “could obtain additional drug
dealing and trafficking information,” Compl. ¶¶ 21(C), (E), (H), and by “[f]ail[ing] to arrest,
charge, detain and/or prosecute” Talley when it had sufficient evidence to do so, id. ¶ 21(F).
These allegations, however, fall short of the pleading requirements for a state-created
danger claim. As to the first element, even if the Township secured Talley’s release from prison
for its own investigative purposes, Plaintiffs fail to allege any facts that suggest her murder was
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To the extent Plaintiffs allege the Township’s investigation of Talley placed her in a statecreated danger, the claim fails for the same reasons outlined above.
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foreseeable in any way to the Township. Moreover, Plaintiffs have failed to plead that Talley’s
murder was fairly direct to the Township’s actions related to her prior custody and release or the
investigation. Similarly, the fourth element fails, as Plaintiffs do not allege the Township’s
actions were the but for cause of Talley’s death. Plaintiffs fail to sufficiently plead the third
element as well. Besides Talley having been previously incarcerated by the Township, Plaintiffs
do not allege any ongoing relationship or contact between the Township and Talley. And even if
Talley’s prior custody was sufficient to establish a relationship between her and the Township,
Plaintiffs do not allege Talley’s murder was brought about as result of the custody or the
Township’s actions related to it. Finally, the Township’s actions in releasing Talley from
custody, subsequently investigating her, and failing to arrest her do not shock the conscience.
Because Plaintiffs have failed to sufficiently plead any element of a state-created danger
claim as to either R’Mani or Talley, the Court will dismiss their state-created danger claim.
The Township also moves to dismiss the Complaint on the ground that the Plaintiffs have
failed to allege a basis for municipal liability. “[W]hen a suit against a municipality is based on
§ 1983, the municipality can only be liable when the alleged constitutional transgression
implements or executes a policy, regulation, or decision officially adopted by the governing body
or informally adopted by custom.” McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009).
To establish a policy or custom, a plaintiff must allege more than a single incident and cannot
rely on vague assertions about a police department’s wrongdoing to demonstrate a municipal
practice or policy. See Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (finding
municipal liability claim “unsubstantiated” where plaintiff relied only on vague assertions and
the specific incident giving rise to the claim); see also City of Okla. City v. Tuttle, 471 U.S. 808,
823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose

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liability under Monell, unless proof of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be
separately proved.” (plurality opinion)).
Plaintiffs’ municipal liability claim fails because they do not allege that the Township
carried out a policy or custom that deprived them of a constitutional right. Plaintiffs argue they
have sufficiently pleaded a municipal liability claim by “alleg[ing] that the Township and its
police officers lacked sufficient policies and procedures relative to protecting minors from the
risks associated with drug transactions, which the police facilitated.” Pls.’ Opp’n 12. Despite
their argument to the contrary, the facts Plaintiffs allege to support the existence of this policy
center around a single, albeit tragic, incident: the murder of Talley and R’Mani during the time
the Township was investigating Talley. Plaintiffs’ vague and bare assertions are insufficient to
plead an unconstitutional policy. Their municipal liability claim will therefore be dismissed.
In opposing the Township’s motion, Plaintiffs seek—in the event the Court finds
dismissal warranted—leave to amend their complaint. “[I]n civil rights cases district courts must
offer amendment . . . when dismissing a case for failure to state a claim unless doing so would be
inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
252 (3d Cir. 2007). Plaintiffs’ request for leave to file an amended complaint will therefore be
granted.
An appropriate Order follows.

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BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

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