Andrews et al v. Monroe County Transit Authority et al
Filing
11
MEMORANDUM AND ORDER granting 5 Motion to Dismiss. Plaintiffs have 21 days to amend their complaint. If they do not, it will be DISMISSED with prejudice. Signed by Honorable A. Richard Caputo on 1/18/12 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE L. ANDREWS and ELGIN I.
MCCARGO, EXECUTOR OF THE
ESTATE OF ANNIE MCCARGOANDREWS, a/k/a ANNIE MURL
MCCARGO-ANDREWS,
CIVIL ACTION NO. 3:11-CV-1859
(JUDGE CAPUTO)
Plaintiffs,
v.
MONROE COUNTY TRANSIT
AUTHORITY and CHARLES JORDAN,
Defendants,
MEMORANDUM
Defendants Monroe County Transit Authority and Charles Jordan move to dismiss
plaintiffs’ complaint. Mr. Andrews, an Alzheimer’s patient, claims he was assaulted by Mr.
Jordan, a bus driver, after he mistakenly boarded Mr. Jordan’s bus. Mr. Andrews further
alleges the Transit Authority unlawfully exposed him to this assault by failing to train Mr.
Jordan to properly deal with the mentally disabled. The Transit Authority and Mr. Jordan
argue the complaint fails to sufficiently allege any of the elements of a “state created
danger” claim. The Court agrees and will grant the motion.
BACKGROUND
Mr. Andrews and Ms. McCargo allege as follows.
Plaintiffs are Joe L. Andrews and Elgin I. McCargo. Ms. McCargo is the executor of
the estate of Annie McCargo-Andrews, who died in December 2009. Mr. and Mrs. Andrews
were married in 1993. Defendant Monroe County Transit Authority is a political subdivision
of the Commonwealth of Pennsylvania. Mr. Jordan was an employee of the Transit
Authority during the time relevant to the complaint.
Mr. Andrews was diagnosed with Alzheimer’s disease in 2000 and began treatment
shortly after. At the time of the underlying incident, he was living independently with his wife
as his primary caregiver. On October 8, 2009, the Andrews went shopping at Walmart.
While checking out, Mr. Andrews got away from his wife and left the store. He then tried
to board a Transit Authority bus. After trying to board the bus without paying, Mr. Jordan,
the driver, asked him what he was doing. Mr. Andrews, who was visibly confused and
nonverbal, then began to take out his penis. Mr. Jordan began yelling at Mr. Andrews. He
then grabbed him and threw him off the bus and onto the sidewalk. Mr. Andrews fractured
his hip and required hip replacement surgery. As a result of the fall, his mental condition
also deteriorated rapidly, and he required frequent hospitalization. He is currently
institutionalized and completely incompetent. Mrs. Andrews the passed away from breast
cancer in December 2009. The Andrews were thus deprived of their last two months
together as husband and wife. The injuries the Andrews suffered were the result of the
Transit Authority’s failure adequately vet and train Mr. Jordan.
Mr. Andrews and Ms. McCargo filed their complaint on October 7, 2011. Their
complaint alleges a federal due process “state-created danger” claim under 42 U.S.C. §
1983. It also alleges battery and vicarious liability under state law. The Transit Authority
and Mr. Jordan filed a motion to dismiss in November. The motion has been fully briefed
and is ripe for review.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal
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is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has
not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations “‘to raise
a reasonable expectation that discovery will reveal evidence of’” each necessary element,
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550
U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a
complaint to set forth information from which each element of a claim may be inferred). In
light of Federal Rule of Civil Procedure 8(a)(2), the statement need only “‘give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). “[T]he factual
detail in a complaint [must not be] so undeveloped that it does not provide a defendant
[with] the type of notice of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232;
see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
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Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
When considering a Rule 12(b)(6) motion, the Court’s role is limited to determining
if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately
prevail. See id. A defendant bears the burden of establishing that a plaintiff’s complaint
fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
DISCUSSION
I.
Due Process “State-Created Danger” Claim
The “state-created” danger claim will be dismissed because the elements of this
claim have not been adequately pled.
Under section 1983, civil remedies are provided to individuals who have sustained
a deprivation of rights secured by the United States Constitution or federal law. 42 U.S.C.
§ 1983. “Section 1983 does not, by its own terms, create substantive rights; it provides only
remedies for deprivations of rights established elsewhere in the Constitution or federal
laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (citing Baker v. McCollan, 443
U.S. 137, 144 n. 3 (1979)). To establish a section 1983 claim a plaintiff must show a
violation of a right secured by the United States Constitution or federal law and show that
the deprivation was committed by a person acting under color of state law. Id. (citations
omitted).
The Due Process Clause provides that “[n]o State shall ... deprive any person of life,
liberty, or property, without due process of law.” The Due Process Clause does not impose
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an affirmative obligation on the state to protect its citizens. See DeShaney v. Winnebago
County Dep't of Soc. Serv., 489 U.S. 189, 195-96 (1989). Instead, “[t]he Clause is phrased
as a limitation on the State's power to act, not as a guarantee of certain minimal levels of
safety and security.” Id. However, one exception to this general rule arises under the
“state-created danger” doctrine, where the state assumes responsibility for the safety of a
person for whom it affirmatively creates or enhances a risk of danger. See Kneipp, 95 F.3d
at 1208; see also DeShaney, 489 U.S. at 200 (“The affirmative duty to protect arises not
from the State's knowledge of the individual's predicament or from its expressions of intent
to help him, but from the limitation which it has imposed on his freedom to act on his own
behalf.”) As the Third Circuit has noted, “the cases where the state-created danger theory
has been applied were based on discrete, grossly reckless acts committed by the state or
state actors using their peculiar positions as state actors, leaving a discrete plaintiff
vulnerable to foreseeable injury.” Kneipp, 95 F.3d at 1208.
A “state-created danger” claim has four elements:
(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,” as opposed to a member of the public in general; and
(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.
Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (internal citations
omitted). To prevail on his claim, plaintiff must establish all four of these elements. See
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Sanford v. Stiles, 456 F.3d 298, 311 (3d Cir. 2006) (citations omitted).
A.
Foreseeability of the harm
The first element—that the harm ultimately caused was foreseeable and fairly
direct—necessarily entails allegations of “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 v. County of Allegheny, 515 F.3d 224, 238
(3d Cir. 2008). See also D.N. ex rel. Nelson v. Snyder, 608 F.Supp.2d 615, 625 (M.D.Pa.
2009). In addition to the foreseeability component of the analysis, the harm must be “a
‘fairly direct’ result of the defendant's acts.” 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.”Snyder, 608 F.Supp.2d at 625 (citing
Phillips, supra, at 238).
In Morse v. Lower Merion School Dist., plaintiff sued school district after his wife was
killed by Arcelia Stovall, an individual with a history of mental illness who had entered the
school building through an open door. 132 F.3d 902 (3d Cir. 1997). The door had been left
open because contractors were working on the building. The plaintiff alleged a “statecreated danger,” claiming that the school district was aware of the risk they were creating
because the unlocked door had previously resulted in a number of thefts and at least one
assault. In examining the first element of a “state-created danger” claim, the Third Circuit
held that the school district “could not have foreseen that allowing construction workers to
use an unlocked back entrance for access to the school building would result in the
murderous act of a mentally unstable third party, and that the tragic harm which ultimately
befell Diane Morse was too attenuated from defendants' actions to support liability.” Morse,
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132 F.3d at 908. This holding was based on three reasons: (1) the complaint did not allege
that the school district was aware of Mr. Stovall’s violent propensities; (2) there was no
allegation that the school district was aware of anyone posing a credible threat of violence
to persons inside the school building; and (3) Mr. Stovall's attack was not a “fairly direct”
result of defendants' actions.
Mr. Andrews and Ms. McCargo have not made any factual allegations that the harm
suffered was either foreseeable or the direct result of the Transit Authority’s actions.
Nowhere in the complaint do they allege that the Transit Authority had any actual
knowledge or specific enough awareness to put them on notice of Mr. Jordan’s violent
tendencies. Additionally, Mr. Jordan’s alleged attack was not the direct result of the Transit
Authority’s actions. While the Transit Authority did hire him, the relationship between this
decision and the attack is too attenuated to hold the Transit Authority responsible. From
the allegations in the complaint, the attack appears to have been a random and discrete
incident that was unforeseeable.
B.
Level of culpability that “shocks the conscience”
“[B]ecause the culpability requirement is often the most difficult element for a plaintiff
to prove, the outcome of a state-created danger case will often turn on this prong.” Sanford,
456 F.3d at 305. There is, however, no precise definition for the term “shocks the
conscience.” Instead, a court must look to the circumstances of each particular case and
determine whether the purported conduct shocks the conscience. See Lewis, 523 U.S. at
850-51; see also Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999) (“The exact
degree of wrongfulness necessary to reach the “conscience-shocking” level depends upon
the circumstances of a particular case.”) Generally, the level of culpability required to shock
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the conscience increases as the time state actors have to deliberate decreases. In a
“hyperpressurized environment,” an intent to cause harm is usually required. On the other
hand, in cases where deliberation is possible and officials have the time to make “unhurried
judgments,” deliberate indifference is sufficient. Sanford, 456 F.3d at 309.
However, courts have consistently held that the state's mere negligence will not
“shock the conscience” for purposes of establishing a substantive due process claim. See,
e.g., Lewis, 523 U.S. at 848-49 (“liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process”); Schieber v.. City of Philadelphia, 320
F.3d 409, 419 (3d Cir.2003) (“negligence is not enough to shock the conscience under any
circumstances”). In contrast, if the state actor unjustifiably intended that his conduct injure
an individual, such conduct will likely rise to the level of conscience shocking. See Schieber,
320 F.3d at 418 (“ ‘conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-shocking level’”
(quoting Lewis, 523 U.S. at 848-49)). In other words, “[T]he environment created by the
state actors must be dangerous; they must know it to be dangerous; and ... [they] must have
been at least deliberately indifferent.” Morse, 132 F.3d at 910 (quoting Johnson v. Dallas
Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir.1994)). “The state's actions must evince a
willingness to ignore a foreseeable danger or risk.” Id.
Here, the Transit Authority has not acted in a way that “shocks the conscience.”
There have been no factual allegations that the Transit Authority either knew they had
created a dangerous situation or that they were deliberately indifferent to it. Although Mr.
Jordan’s alleged actions were ugly and unfortunate, there are no allegations that the Transit
Authority had any prior knowledge of the danger he posed to bus patrons. Even if the
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Transit Authority was negligent in its hiring or training of Mr. Jordan, that negligence alone
would not be enough to “shock the conscience.”
C.
“Foreseeable plaintiff”
To satisfy the “foreseeable plaintiff” prong, it need not be alleged that the state’s
actions placed a specific individual in danger. Rather, plaintiff can satisfy this element if
he, “was a member of a discrete class of persons subjected to the potential harm brought
about by the state's actions.” Morse, 132 F.3d at 913 . A “discrete plaintiff” may mean a
specific person or a specific class of persons. “The primary focus when making this
determination is foreseeability.” Morse, 132 F.3d at 913.
Here, this element is a closer call.
But it is of little consequence. The Transit
Authority contends that Mr. Andrews was not part of a discrete class but simply a member
of the public. Mr. Andrews, in contrast, contends he was a member of a specific class of
persons because he is mentally disabled. Since Mr. Jordan was not trained in how to deal
with such individuals, Mr. Andrews alleges, Mr. Jordan ended up assaulting him. Even
granting Mr. Andrews this point, it will not alter the Court’s decision.
D.
“Affirmative” acts
Under the fourth element of a state-created danger claim, “[l]iability under the
state-created danger theory is predicated upon the states' affirmative acts which work to the
plaintiffs' detriments in terms of exposure to danger.” D.R. by L.R. v. Middle Bucks Area Vo.
Tech. School, 972 F.2d 1364, 1374 (3d Cir.1992) (en banc). The Third Circuit has
acknowledged that the line between action and inaction may not always be clear. D.R., 972
F.2d at 1374. However, it has never found a state-created danger claim to be meritorious
without an allegation and subsequent showing that state authority was affirmatively
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exercised. Phillips, 515 F.3d at 236. Third Circuit jurisprudence requires a plaintiff allege
an affirmative action, rather than inaction or omission. Bright, 443 F.3d at 282. The three
necessary conditions to satisfy the fourth element of a state-created danger claim are that:
(1) a state actor exercised his or her authority, (2) the state actor took an affirmative action,
and (3) this act created a danger to the citizen or rendered the citizen more vulnerable to
danger than if the state had not acted at all. Id. at 281-82. More fundamentally, there needs
to be a “direct causal connection” between the acts or omissions of the state and the harm
which befell the victim. Morse, 132 F.3d at 915.
Here, the only action taken by the Transit Authority was hiring Mr. Jordan. This act
ultimately resulted in Mr. Andrews’ allegedly being assaulted. But by itself it is too removed
in time from the alleged assault to qualify as an “affirmative act.” There are no allegations
that the Transit Authority hired Mr. Jordan knowing he was violent or that they received
complaints from patrons and did not reprimand or fire him. The Transit Authority did nothing
to put Mr. Andrews in greater danger than he otherwise would have been in. The complaint
essentially alleges the Transit Authority failed to properly train Mr. Jordan. But this fact, by
itself, is an omission and not an affirmative act. The link between the two events is simply
too tenuous to provide a “direct causal connection.”
In conclusion, the Court will dismiss the “state-created danger” claim because the
complaint fails to properly allege at least three of the claim’s four elements.
II.
State law claims
Mr. Andrews and Ms. McCargo’s state law claims will also be dismissed. Under 28
U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction over a
claim or claims if the district court has dismissed all claims over which it has original
jurisdiction. Since the Court will dismiss the “state-created danger” claim – the sole basis
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of the Court’s jurisdiction under 28 U.S.C. § 1331 – it will also decline supplemental
jurisdiction over the state law battery and vicarious liability claims.
III.
Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to 12(b)(6)
dismissal, the district court must permit a curative amendment, unless an amendment would
be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)
(citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir.2000)). Therefore, the Court will give
the plaintiffs twenty-one days to amend their complaint or it will be dismissed with prejudice.
CONCLUSION
The Court will grant the motion to dismiss. Mr. Andrews and Ms. McCargo
have not sufficiently pled the elements of a “state-created danger” claim and the Court
declines to exercise jurisdiction over the state law claims. Plaintiffs will have twenty-one
days to amend their complaint. An appropriate order follows.
1/18/12
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE L. ANDREWS and ELGIN I.
MCCARGO, EXECUTOR OF THE
ESTATE OF ANNIE MCCARGOANDREWS, a/k/a ANNIE MURL
MCCARGO-ANDREWS,
CIVIL ACTION NO. 3:11-CV-1859
(JUDGE CAPUTO)
Plaintiffs,
v.
MONROE COUNTY TRANSIT
AUTHORITY and CHARLES JORDAN,
Defendants,
ORDER
NOW, this
18th
day of January, 2012, IT IS HEREBY ORDERED that the
Transit Authority’s and Mr. Jordan’s motion to dismiss (Doc. 5) is GRANTED. Mr.
Andrews and Ms. McCargo have twenty-one (21) days to amend their complaint. If
they do not, it will be DISMISSED with prejudice.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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