Goss-Kozic v. Ross Township et al
Filing
63
MEMORANDUM (Order to follow as separate docket entry) re 56 MOTION for Reconsideration.Signed by Honorable Malachy E Mannion on 11/10/16. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LINDA S. GOSS-KOZIC,
:
individually and as Administratrix
of the Estate of Gerard J. Kozic,
: CIVIL ACTION NO. 3:15-1479
Deceased,
:
(JUDGE MANNION)
Plaintiff
:
v.
:
ROSS TOWNSHIP, et al.,
:
Defendants
MEMORANDUM
Currently before the court is a motion for reconsideration filed by the
plaintiff, Linda S. Goss-Kozic. (Doc. 56). The plaintiff seeks reconsideration
of the court’s August 29, 2016 Memorandum and Order, (Docs. 54–55),
denying the plaintiff’s motion for leave of court to file an amended complaint,
(Doc. 47), and granting the defendants’ various motions to dismiss, (Docs. 19,
22, 29). These defendants include: Ross Township; Ross Township
Supervisors, Howard Beers (“Supervisor Beers”), Russell Kresge, Jr.
(“Supervisor Kresge”), and Tina Drake (“Supervisor Drake”) (collectively, the
“Ross Township Supervisors”); Ross Township Solicitor John Dunn (“Solicitor
Dunn”); and Sheriff of Monroe County, Pennsylvania, Todd Martin (“Sheriff
Martin”). The Ross Township Supervisors and Solicitor Dunn were sued in
both their individual and official capacities; Sheriff Martin was sued in his
individual capacity alone. In its Memorandum and Order, the court dismissed
all claims against all defendants in the plaintiff’s original and proposed
amended complaint. For the reasons stated below, the plaintiff’s motion for
reconsideration of the court’s August 29, 2016 decision is DENIED.
I.
BACKGROUND
A.
The August 5, 2013 Ross Township Meeting
As detailed in the court’s previous memorandum, great tragedy befell
Ross Township on August 5, 2013. On that day, township resident Rockne
Newell (“Newell”) opened fire during a monthly meeting held by the Ross
Township Supervisors. Newell’s property had been condemned and sold by
Ross Township eleven days prior to the shooting, on July 25, 2013, in order
to satisfy a $8,434.15 judgment the township obtained from the Monroe
County Court of Common Pleas due to Newell’s ongoing zoning and sewage
violations. Newell’s reaction to the township’s actions was to engage in a
deadly mass shooting at the August 5, 2013 township meeting, resulting in
the tragic dead of the plaintiff’s husband, Gerald J. Kozic, in addition to the
deaths of two other meeting attendees, James Vincent LaGuardia and David
Fleetwood. The plaintiff was also in attendance at the meeting and was left
severely injured due to a gunshot wound to her left leg.
2
On July 30, 2015, individually and as executor of her husband’s estate,
the plaintiff filed the current action. (Doc. 1). The plaintiff alleged that she and
her husband were deprived of their due process rights under the Fourteenth
Amendment of the United States Constitution and her action was filed
pursuant to Title 42, Section 1983 of the United States Code. The plaintiff’s
complaint utilized Pennsylvania’s wrongful death and survival statute as the
mechanism for recovery of the alleged civil rights violations committed against
the plaintiff’s deceased husband (Count I and II). A third count (Count III) was
included on behalf of the plaintiff’s own personal injuries, both physical and
emotional.
The plaintiff alleged that, over a period of approximately 20 years, the
Ross Township Supervisors and Solicitor Dunn engaged in a “substantial and
multi-faceted campaign” against Newell. (Doc. 1, at ¶15). These actions,
coupled with the defendants’ “zealous over use of legal process” against
Newell were alleged to create the opportunity for the danger at the township
meeting on August 5, 2013. (Id. at ¶41). The plaintiff alleged that the Ross
Township Supervisors used their positions for “personal gain and benefit,” as
opposed to the best interests of the township. (Id. at ¶17). An alleged
motivation for this conduct was Supervisor Kresge’s desire to purchase
Newell’s property and add it to his own 61.98 acre adjacent property. (See id.
at ¶¶18–21). These motives led to the “selective” enforcement of zoning
3
ordinances against Newell and a campaign against Newell for zoning and
sewer regulations, which included a referral to the Federal Emergency
Management Agency (“FEMA”) that Newell had made a fraudulent claim for
money to finance a project on his property. (Id. at ¶¶22–25). It was also
alleged that Ross Township, the Ross Township Supervisors, and Solicitor
Dunn knew this conduct “was provoking or likely to invoke violence from
Rockne Newell.” (Id. at ¶49(d)).
The plaintiff also claimed that Ross Township, the Ross Township
Supervisors, and Solicitor Dunn consciously disregarded her husband’s civil
rights by failing to warn attendees, secure, or take action at the August 5,
2013 meeting despite their alleged knowledge of Newell’s propensity for
violence. (Id. at ¶49). This allegation was based on Newell’s interactions with
others in the community and Newell’s father’s statements to sheriff deputies
that his son was threatening violence due to the township’s actions. (See id.
at ¶¶27–28). In particular, Newell’s father allegedly warned sheriff deputies
that people would “die” due to the township’s actions in proceeding with the
sale of Newell’s property. (Id. at ¶28).
Distinct from the claims against Ross Township, the Ross Township
Supervisors, and Solicitor Dunn, the plaintiff’s claim against Sheriff Martin was
based, primarily, upon Sheriff Martin’s failure to take action before the
township meeting or secure the township meeting, despite Sheriff Martin’s
4
purported knowledge of Newell’s dangerous propensities and threats of
violence. (See id. at ¶56). However, included in the plaintiff’s complaint was
an allegation that Sheriff Martin consciously disregarded the plaintiff’s and her
husband’s civil rights “in exercising state authority that left [the] [p]laintiff’s
decedent vulnerable to harm by Newell.” (Id. at ¶56(h)).
B.
The Parties’ Underlying Motions
On September 14, 2015, Sheriff Martin filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Doc. 19). Sheriff
Martin sought dismissal of the Section 1983 claim against him in his individual
capacity primarily based upon the Supreme Court decision in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189 (1989) and
the plaintiff’s failure to allege an exception to the principles set forth in
DeShaney. Specifically, Sheriff Martin argued that the plaintiff failed to
adequately plead the state-created danger exception to DeShaney. In the
alternative, Sheriff Martin alleged that he had no authority to act at the August
5, 2013 township meeting and that he either had absolute or qualified
immunity from suit when conducting the sheriff’s sale of Newell’s property. In
the event the court found a valid Section 1983 claim, Sheriff Martin also
argued that Pennsylvania’s wrongful death statute, 42 Pa. Cons. Stat. Ann.
§8301, could not provide a remedy for violations of Section 1983. He argued
that, at a minimum, the wrongful death count should be dismissed.
5
On September 24, 2015, Ross Township and the Ross Township
Supervisors filed a motion to dismiss the plaintiff’s complaint. (See Doc. 22).
This motion made the same argument as Sheriff Martin’s motion, failure to
state a claim using the state-created danger exception to DeShaney. The
motion also construed the plaintiff’s complaint to include a possible state law
claim of negligence. Ross Township and the Ross Township Supervisors
sought to dismiss any potential state tort action by claiming immunity under
Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann.
§8541–42.
Lastly, on October 16, 2015, Solicitor Dunn filed his own Rule 12(b)(6)
motion to dismiss. (See Doc. 29). In addition to asserting the DeShaney
defense, Solicitor Dunn asserted that he was not a state actor subject to
Section 1986 or, in the alternative, if he was a state actor, that his actions
were shielded by the good faith defense. Like Sheriff Martin, Solicitor Dunn
also alleged that, in the event the court found a valid Section 1983 claim,
Pennsylvania’s wrongful death statute did not provide a remedy for violations
of Section 1983 and that, at a minimum, the wrongful death count should be
dismissed.
In addition to responding to all the defendants’ motions to dismiss, on
May 13, 2016, the plaintiff filed a motion for leave to file an amended
complaint, (Doc. 47), as the deadline for amended pleading had already
6
passed. The overall substance of the proposed amended complaint was the
same as the original complaint. The proposed amended complaint did not
include any new claims or causes of action. Instead, it added several new
factual allegations in an effort to show that the defendants knew of Newell’s
propensity for violence prior to the August 5, 2013 shooting. These included
the following factual accounts:
1.
An alleged conversation between Newell and Solicitor Dunn after
a court proceeding at the Monroe County Courthouse where
Newell took a bullet from his coat pocket, showed it to Solicitor
Dunn, and warned Solicitor Dunn that he would have shot him if
Solicitor Dunn had been successful in taking the property;
2.
An alleged conversation between Newell and Supervisor Kresge
at a local diner where Newell said to Supervisor Kresge, “You
know me and you know my family. You keep this up, and we’re
going to meet somewhere, me and you. When we’re done, it will
be only me”;
3.
An alleged incident between Newell and a code enforcement
officer at Ross Township that involved Newell doing the following:
revealing a handgun to the officer; removing an automatic
weapon from his vehicle and spraying bullets into the trees on his
property; and threatening violence if the officer ever returned to
the property;
4.
An allegation that a different code enforcement officer from Ross
Township refused to deliver an enforcement notice to Newell and
voluntarily left his position with the township because he believed
that no one should mess with the Newells;
5.
An alleged conversation between Newell and Sheriff Martin where
Newell advised Sheriff Martin that, if Sheriff Martin attempted to
come to or take Newell’s property, Sheriff Martin should shoot
Newell because Newell did not want to shoot him.
7
(Doc. 47-3, at ¶¶28–31, 34). These new allegations were added as a result
of an interview with Newell on April 28, 2016. The plaintiff was unable to
obtain this information earlier due to Newell’s movement through the state
correctional system and the plaintiff’s counsel’s inability to contact Newell’s
criminal defense attorney. All of the defendants opposed the plaintiff’s request
to file an amended pleading, arguing that any amendment would be futile in
light of the legal arguments presented in the motions to dismiss.
On October 19, 2015, before the plaintiff sought leave to file an
amended complaint, the court consolidated discovery in the matter with
matters filed on behalf of other attendees at the township meeting, including
those filed by the wife of decedent James Vincent LaGuardia and by husband
and wife, Patricia A. Baeur and Richard A. Bauer.1 (See Doc. 31). Thereafter,
while the defendants’ motions were still pending, the court continued
scheduling a joint case management plan. (See Docs. 40, 46). Originally, the
court set the deadline for amended pleadings from the plaintiff to February 1,
2016 and set the deadline for fact discovery to June 1, 2016. (See Doc. 40).
On May 9, 2016, the deadline for fact discovery was extended to October 1,
2016. (See Doc. 46). Thus, discovery continued up until the court’s August
29, 2016 decision.
1
LaGuardia v. Ross Township, Civ. No. 3:15-cv-01475-MEM (M.D. Pa.);
Bauer v. Ross Township, Civ. No. 3:15-cv-01523-MEM (M.D. Pa.).
8
C.
The Court’s August 29, 2016 Memorandum and Order
On August 29, 2016 the court determined that the August 5, 2013
massacre fell within the principles espoused in DeShaney and that the plaintiff
had not alleged a viable state-created danger claim as an exception to
DeShaney. In DeShaney, the Supreme Court of the United States held that
the Fourteenth Amendment does not impose an affirmative obligation upon
a state to protect its citizens from the violent actions of private actors.
DeShaney v. Winnebago County Dept’s of Soc. Servs., 489 U.S. 189, 195–96
(1989). One exception to this holding is the state-created danger exception,
which is the theory that the plaintiff’s complaint was premised upon. See
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997). The
state-created danger exception requires that the plaintiff establish four
elements:
1.
The harm ultimately caused was foreseeable and fairly direct;
2.
The state actor acted in willful disregard for the safety of the
plaintiff, otherwise stated as acting with a degree of culpability
that shocks the conscience;
3.
There existed some relationship between the state and the
plaintiff making the plaintiff a foreseeable victim or a member of
a discrete class of persons subject to harm due to the state’s
actions; and
4.
The state actor affirmatively used his/her authority to create an
opportunity for danger that otherwise would not have existed for
the third party’s crime to occur, making the citizen more
vulnerable to danger than had the state not acted at all.
9
L.R. v. Sch. Dist. of Phila., -- F.3d --, 2016 WL 4608133, at *3 (3d. Cir. Sept.
6, 2016) (citing Bright v. Westmoreland, 443 F.3d 276, 281 (3d Cir. 2006));
Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996).
In its memorandum, the court addressed the fourth element of the statecreated danger theory first. The court then separated the unconstitutional
conduct alleged in the plaintiff’s complaint into two categories, a category of
nonfeasance based on the defendants’ failure to secure the meeting or warn
the meeting attendees of Newell’s dangerous propensities and the
defendants’ affirmative conduct or malfeasance in pursuing legal action
against Newell. The court went on to explain that those allegations predicated
upon nonfeasance and the defendants’ failure to act, warn, or secure the
township meeting could not form the basis of a valid state-created danger
claim for the plaintiff, individually, or for her deceased husband.
Addressing the allegations relating to the defendants’ affirmative actions
in pursuing legal means against Newell, the court found that those actions did
not create the opportunity for the alleged harm and that to find such would
involve a great leap in logic. The court therefore found that the plaintiff had
failed to establish the fourth element of the exception. Turning to the first
element of the state-created danger theory, the court determined that Newell’s
criminal actions on August 5, 2013 were not foreseeable and that the
defendants’ actions did not directly lead to Newell’s homicidal attack.
10
Addressing the second element, the court determined that the defendants did
not act with deliberate indifference or exhibit conscious shocking behavior.
Lastly, the court determined that, as required by the third element, Mr. Kozic
was not alleged to be a member of a discreet class of persons subject to
harm due to the defendants’ behavior.
Because the plaintiff had failed to establish a valid Section 1983 claim,
the court did not address whether Pennsylvania’s wrongful death statute was
an appropriate mechanism for remedies under Section 1983. The court also
found that any amendment to the complaint would be futile and, therefore,
denied the plaintiff’s request to amend her complaint.2 The plaintiff now seeks
reconsideration of the court’s August 29, 2016 Memorandum and Order
dismissing the Section 1983 claim brought on behalf of herself and her
husband. She brings her motion pursuant to Federal Rule of Civil Procedure
59(e) or, in the alternative, Federal Rule of Civil Procedure 60(b)(2).3
2
In an abundance of caution, the court also dismissed any state law
claims the plaintiff may have attempted to include in her complaint. The court
dismissed these claims on grounds of immunity under Pennsylvania’s Political
Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §8541–42, and based
on the plaintiff’s failure to plead a cognizable tort under Pennsylvania law.
3
The plaintiff has also appealed the court’s August 29, 2016 decision
and that appeal has been stayed pending this decision. (See Docs. 61–62).
11
II.
LEGAL STANDARDS
Rule 59(e) provides the procedural mechanism for altering or amending
a judgment that has been entered. It may be used to seek remediation for
manifest errors of law or fact or to present newly discovered evidence which,
if discovered previously, might have affected the court's decision. United
States el rel. Schumann v. Astrazeneca Pharmaceuticals, L.P., 769 F.3d 837,
848 (3d Cir. 2014) (citing Max’s Seafood Café v. Quineros, 176 F.3d 669, 677
(3d Cir. 1999)); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
A party seeking reconsideration must demonstrate at least one of the
following grounds prior to the court altering, or amending, a standing
judgment: (1) an intervening change in the controlling law; (2) the availability
of new evidence that was not available when the court granted the motion; or
(3) the need to correct a clear error of law or fact or to prevent manifest
injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010); Max’s
Seafood Café, 176 F.3d at 677 (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). However, “[b]ecause
federal courts have a strong interest in the finality of judgments, motions for
reconsideration should be granted sparingly.” Continental Casualty Co. v.
Diversified Indus. Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).
Reconsideration is generally appropriate in instances where the court
has “misunderstood a party, or has made a decision outside the adversarial
12
issues presented to the [c]ourt by the parties, or has made an error not of
reasoning, but of apprehension.” York Int’l Corp. v. Liberty Mut. Ins. Co., 140
F. Supp. 3d 357, 360–61 (3d Cir. 2015) (quoting Rohrbach v. AT & T Nassau
Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995)). It may not be used as
a means to reargue unsuccessful theories that were presented to the court in
the context of the matter previously decided “or as an attempt to relitigate a
point of disagreement between the [c]ourt and the litigant.” Id. at 361 (quoting
Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002)).
Rule 60(b) provides a list of six enumerated grounds that would allow
a party to obtain relief from a final judgment, order, or proceeding. One of
these grounds includes “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial
under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). The Rule 60(b)(2) standard
“requires that ‘the new evidence (1) be material and not merely cumulative,
(2) could not have been discovered before trial through the exercise of
reasonable diligence and (3) would probably have changed the outcome of
trial.’” Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 309 (3d Cir.
2001) (quoting Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130
(3d Cir. 1995)).
Normally, the standards that govern motions under Rule 59 and Rule
60(b) are similar. Compass Tech., Inc., 71 F.3d at 1130. However, in this
13
instance, it is clear that the standard under Rule 60(b)(2) requires a trial and,
thus, this rule is not applicable to the plaintiff’s instant motion. It is the
“function of the motion, and not the caption, [that] dictates which Rule is
applicable.” United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). The
court therefore proceeds under Rule 59(e).
In addition to the Rule 59(e) standard set forth above, the standard of
review when reconsidering the parties’ previous motions relates back to the
standards applicable to the underlying decision. York Int’l Corp., 140 F. Supp.
3d at 361. Accordingly, when a motion for reconsideration challenges the
district court’s decision to grant a motion to dismiss and deny a motion for
leave to amend a complaint, the analysis on reconsideration is guided by the
standard provided by Federal Rule of Civil Procedure 12 and Federal Rule of
Civil Procedure 15.
III.
DISCUSSION
The plaintiff’s motion is based on evidence that was uncovered as the
parties engaged in ongoing fact discovery. This evidence is not truly “new” in
the sense that it puts the defendants on notice of allegations different than
those in the original or amended complaint. Nor does this new evidence
change the applicable plausibility analysis under Bell Atlantic Corp. v.
14
Twombly, 550 U.S. 544 (2007). As such, the plaintiff’s new evidence does not
change the court’s ultimate conclusion under Rule 12(b)(6) or Rule 15.
A. The Plaintiff’s Newly Discovered Evidence
The plaintiff’s new evidence offered in support of her motion includes,
and is summarized, as follows:
1.
Statements made by Manuel Anthony Pagan (“Pagan”)4 to
Pennsylvania police that when Pagan served Newell with papers
on June 8, 2013, Newell had a “short fuse and . . . went ballistic
upon service of the documents” to such a degree that Pagan
called Solicitor Dunn “to report that Newell was about to explode”;
2.
Deposition testimony from Newell‘s father, Lyndon Newell
(“Pete”), confirming that he was concerned about Newell’s
behavior before the August 5, 2013 incident and that he did, in
fact, report to sheriff deputies that someone would die due to the
township’s actions;
3.
Deposition testimony from Michael B. Kaspszyk, Esquire
(“Attorney Kaspszyk”) about a conversation he had with Newell
where Newell indicated that he would have to take the law into his
own hands due to the legal proceedings against him5 and
4
It is unclear what role Michael Anthony Pagan played in the underlying
incident. The exhibits provided by the plaintiff suggest that he is a process
server who was hired by Solicitor Dunn to serve papers before the execution
sale of Newell’s property. In his deposition testimony, Sheriff Martin denied
knowing Michael Anthony Pagan and denied that any such person worked as
a deputy in the sheriff’s office. (See Doc. 62-6 at 60, 65).
5
Michael B. Kaspszyk, Esquire was representing nearby Eldred
Township in a proceeding at the Monroe County Courthouse at the same time
that Newell was scheduled to appear in a proceeding initiated against him by
Ross Township. After the proceeding, Attorney Kaspszyk alleged that he was
approached by Newell who was seeking representation and it is at this time
that Newell allegedly commented on needing to take the law into his own
15
Attorney Kaspszyk’s subsequent decision to tell Solicitor Dunn
that Newell appeared “a bit unhinged”;
4.
Deposition testimony from the plaintiff that she noticed the Ross
Township Supervisors and Solicitor Dunn nervously and fearfully
watching the door during the August 5, 2013 meeting as if looking
for something or someone to appear;
5.
Deposition testimony from zoning officer John Kochis that
Supervisor Kresge described Newell as “a nut” and that one
magisterial district judge would not take a case involving Newell
due to his reputation;
6.
Deposition testimony from Newell’s aunt, Monica Pilas, regarding
Newell’s mental health history and a childhood incident where
Newell hit another child over the head with a 4x4 piece of wood
after being teased;
7.
Deposition testimony from Supervisor Kresge that he did not want
Newell around, did not like Newell’s unkept appearance, did not
like the way Newell lived or maintained his property, and
testimony that the township had not executed on a judgment or
forced a sheriff’s sale for any other resident;
8.
Deposition testimony from Supervisor Drake indicating that Ross
Township had obtained a judgment against one other resident but
never proceeded to sheriff’s sale in that instance;
9.
Deposition testimony from Supervisor Beers regarding the various
legal actions brought against Newell, including Supervisor Beers’s
decision to call FEMA and send a letter to Pennsylvania Senator
Patrick Toomey about a possible fraudulent payment of money to
Newell from FEMA;
10.
Statements made by Earl Kresge, Jr. to Pennsylvania police that
Newell had told Ross Township how he felt about the township’s
actions prior to August 5, 2013;
hands. (Doc. 56-4 at 5, 7–8, 11).
16
11.
Three (3) psychiatric evaluations performed on Newell as part of
the criminal proceedings against him;6 and
12.
Deposition testimony from Sheriff Martin acknowledging that
Newell acted like “Dr. Jekyll and Mr. Hyde” and acknowledging
that Newell had made previous threats to sheriff deputies.
(See Doc. 56, at ¶17). Most of the evidence offered by the plaintiff attempts
to show that the defendants’ knew that Newell might be dangerous prior to
August 5, 2013. The evidence also affirms some of the protracted legal battle
that Ross Township had with Newell. This new evidence does not, however,
change the court’s ultimate conclusion as provided in its August 29, 2016
Memorandum and Order.
B. Rule 12(b)(6) and Rule 15
The plaintiff, by presenting a myriad of additional facts, suggests that
this court’s August 29, 2016 decision was premised on the insufficiency of the
amount of facts alleged in the complaint and proposed amended complaint.
However, a complaint need only set forth its jurisdictional grounds, “a short
and plain statement of the claim showing that the pleader is entitled to relief,”
and “a demand for the relief sought.” Fed. R. Civ. P. 8(a). Dismissal under
Rule 12(b)(6) is appropriate only if, accepting all of the facts alleged in the
6
It is unclear what role this new evidence plays in the plaintiff’s current
motion. It was not referenced in the plaintiff’s brief in support. Also, the
evaluations were done as a result of the tragic event on August 5, 2013.
Therefore, no party had knowledge of the findings within the evaluations
before that day.
17
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The
facts alleged must be sufficient to “raise a right to relief above the speculative
level.” Id. at 555. This requirement “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of” necessary
elements of the plaintiff’s cause of action. Id. at 556.
Rule 15 allows a party to amend its pleading after the time for
amendment has expired. Although the rule permitting amendment is more
liberal, amendment is not automatic. See Dover Steel Co., Inc. v. Hartford
Accident and Indent., 151 F.R.D. 570, 574 (E.D. Pa.1993). Leave to amend
should not be granted where amendment would be futile. Foman v. Davis,
371 U.S. 178, 182 (1962); see also Oran v. Stafford, 226 F.3d 275, 291 (3d
Cir. 2000). Similar to the Rule 12(b)(6) standard, futility of amendment occurs
when the complaint, as amended, does not state a claim upon which relief
can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir.1997) (“In assessing ‘futility,’ the district court applies the same
standard of legal sufficiency as applies under Rule 12(b)(6).”).
The court dismissed the plaintiff’s action not based upon the amount of
facts alleged, but based upon whether those that were alleged could plausibly
provide relief as required by Twombly. This same analysis applied to the
court’s finding of futility in allowing the plaintiff to amend her original
18
complaint. Ultimately, the court found that those facts alleged in the complaint
and proposed amended complaint could not provide relief. The evidence
provided now is merely cumulative of those facts alleged in the plaintiff’s
complaint and proposed amended complaint. This new evidence, therefore,
does not change the court’s previous conclusion that the plaintiff failed to
state a claim under Section 1983 and that amendment would be futile.
The statements made to police by Pagan and Earl Kresge, Jr. and the
deposition testimonies of Newell’s father, Attorney Kaspszyk, the plaintiff,
Sheriff Martin, John Kochis, and Monica Pilas are currently offered to suggest
that the defendants knew of Newell’s dangerous propensities. These factual
incidents merely add to the facts offered in the plaintiff’s proposed amended
complaint. As detailed above, in her proposed amended complaint, the
plaintiff sought to include the following: (1) an incident between Newell and
Solicitor Dunn where Newell threatened violence; (2) threatening statements
Newell made to Supervisor Kresge at a local diner; (3) an interaction between
Newell and John Kochis where Newell implicitly threatened violence by
spraying bullets into the trees on his property; (4) statements made by a code
enforcement officer that no one should mess with the Newells; and (5)
threatening statements Newell made to Sheriff Martin. (See Doc. 47-3, at
¶¶28–31, 34). While the additional statements and deposition testimonies
offered now differ in form, the substance and intention behind these facts
19
remain the same—an attempt to show that the defendants’ knew Newell was
dangerous or had a propensity for violent behavior. This new evidence is not
new in the sense that it puts the defendants on notice of an allegation that
they were not on notice of before.
Similarly, the deposition testimonies of Supervisor Kresge, Supervisor
Beers, and Supervisor Drake reaffirm the various legal actions taken against
Newell and the alleged motivations behind those actions. Particularly, it
reaffirms the allegations that the Ross Township Supervisors “pursu[ed] legal
actions for violations of local zoning and sewer regulations” and “pursu[ed]
various violations against Newell for infractions that were ignored against
other owners,” among other things. (Doc. 1, at ¶¶16(b), (e)). The deposition
testimony of Newell’s father reaffirms the plaintiff’s allegation that the
township’s actions were motivated, in part, by Supervisor’s Kresge’s desire
to purchase Newell’s property. (Compare Doc. 1, at ¶¶18–20, with, Doc. 56-3,
at 20–22). In addition, Supervisor Kresge’s deposition testimony reaffirms the
plaintiff’s allegation that Supervisor Kresge did not like the way Newell
maintained himself and/or his property. (Compare Doc. 1, at ¶21, with, Doc.
56-9, at 52–53, 76). Again, this new evidence is not new in the sense that it
puts the defendants on notice of allegations that they were not on notice of
before.
20
C.
The Plaintiff’s Failure to State a Valid Section 1983 Claim
The plaintiff’s cumulation of additional evidence also does not change
the court’s ultimate conclusion under Twombly’s plausibility and futility
standard for stating a valid claim. As stated above, the state-created danger
exception to DeShaney requires that the plaintiff establish the following four
elements:
1.
The harm ultimately caused was foreseeable and fairly direct;
2.
The state actor acted in willful disregard for the safety of the
plaintiff, otherwise stated as acting with a degree of culpability
that shocks the conscience;
3.
There existed some relationship between the state and the
plaintiff making the plaintiff a foreseeable victim or a member of
a discrete class of persons subject to harm due to the state’s
actions; and
4.
The state actor affirmatively used his/her authority to create an
opportunity for danger that otherwise would not have existed for
the third party’s crime to occur, making the citizen more
vulnerable to danger than had the state not acted at all.
L.R., -- F.3d --, 2016 WL 4608133, at *3; Kneipp, 95 F.3d at 1208. In addition,
it is well established that under the fourth prong the plaintiff must sufficiently
plead that “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
(emphasis added).
21
Thus, to the extent the plaintiff’s new evidence is offered to show that
the defendants’ should have acted in light of their knowledge of Newell’s
dangerous propensities, the plaintiff’s argument must fail a second time. As
further explained in this court’s August 29, 2016 Memorandum, the
defendants’ failures to act do not state a cognizable Section 1983 claim. See
Walter v. Pike County, 544 F.3d 182, 194–95 (3d Cir. 2008). As explained by
the Supreme Court in DeShaney, the Due Process Clause of the Fourteenth
Amendment was intended to “protect the people from the State, not to ensure
that the State protected them from each other.” 489 U.S. at 196. The statecreated danger exception is limited to a set of facts alleging affirmative
conduct on the part of the state actor. Thus, the defendants’ failures to act
can never set forth a valid Section 1983 claim. This conclusion remains true
despite the defendants’ knowledge that Newell was exhibiting threatening
behavior towards various individuals and despite the plaintiff’s offering of
additional evidence. See id. No amendment can save this claim.
To the extent the new evidence is offered to show that the defendants’
use of legal process against Newell sets forth a viable Section 1983 claim,
this argument must also fail a second time. The plaintiff attempts to reargue
the unsuccessful theory asserted in defense of the defendants’ motions to
dismiss. Instead of addressing each element as it did in its August 29, 2016
Memorandum, the court focuses on the third element of the state-created
22
danger exception and finds that, even after considering the plaintiff’s newly
discovered evidence, the plaintiff’s claim must fail yet again.
The third element of the state-created danger theory requires that a
plaintiff adequately plead “some relationship . . . between the state and the
plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 242 (3d Cir. 2008).
The plaintiff must plead “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.” Kaucher v. County of Bucks, 455 F.3d 418, 431 (3d
Cir. 2006). The relationship need not relate directly to a specific plaintiff and
may relate to a “identifiable and discreet class of persons subject to the harm
the state allegedly has created.” Morse, 132 F.3d at 914. The ultimate test is
one of foreseeability. Id. However, “[w]hat is clear is that a member of the
general public may not qualify.” Id. at 913.
The plaintiff’s complaint and proposed amended complaint allege that
“[a]s residents of Ross Township in attendance at the Supervisor’s public
meeting of August 5, 2013, Plaintiff and Plaintiff’s Decedent, Gerald J. Kozic,
were members of a discreet class of persons made vulnerable to the
enhanced risk of bodily injury, death and psychological trauma caused by the
Defendants’ actions.” (Doc. 1, at ¶47; Doc. 47-3, at ¶52). The plaintiff, in her
brief in support of the motion for reconsideration, suggests that her and her
23
husband were members of a class of persons comprised of those attending
the August 5, 2013 Ross Township meeting and that they were foreseeable
victims. That meeting, however, was open to the general public. The plaintiff
recognizes as much when describing her and her husband “[a]s residents of
Ross Township in attendance at the Supervisor’s public meeting of August 5,
2013.” (Id.) (emphasis added).
None of the evidence offered by the plaintiff suggests that the August
5, 2013 meeting was limited to particular persons. Nothing in the evidence
gives rise to an inference that the particular meeting held on August 5, 2013
was a known target by Newell, therein making those in attendance at that
particular meeting foreseeable victims. Newell might have “snapped” at any
moment in time based on the allegations in the plaintiff’s complaint and
proposed amended complaint. Newell’s threats, as shown by the sum total of
the plaintiff’s evidence, were primarily directed at the Ross Township
Supervisors, Solicitor Dunn, Sheriff Martin, and, possibly, code enforcement
officer John Kochis and sheriff deputies serving Newell with papers. There
was nothing unusual about the August 5, 2013 meeting. Newell was not
invited to attend, nor was he a scheduled topic of discussion. In addition,
threats or indications that “people,” more generally, would die due to the
township’s actions does not, in itself, form a discrete, identifiable class. (Doc.
1, at ¶¶28, 38; Doc. 47-3, at ¶¶32, 43).
24
The plaintiff’s bare legal conclusion that her and her husband were part
of a discrete class of persons subject to harm is insufficient to satisfy the third
prong of the state-created danger exception to DeShaney and is insufficient
to survive a motion to dismiss. See Phillips, 515 F.3d at 231 (“more than
labels and conclusions, and a formulaic recitation of the elements of a cause
of action” is required to state a plausible claim). Thus, even under the most
liberal reading of the complaint, the plaintiff is unable to adequately plead all
of the elements of a valid Section 1983 claim on behalf of herself or her
husband. Any amendment would be futile as attendance at the August 5,
2013, was, by definition, open to the general public. Thus, even if the court
were to conclude that the quantum of additional evidence makes the plaintiff’s
Section 1983 more plausible under the first, second, and fourth prong of the
state-created danger theory, the claim would still fail under the third prong. No
amendment can cure this deficiency.
IV.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion for reconsideration of
the court’s August 29, 2016 decision is DENIED. The plaintiff has failed to
provide any additional evidence that would alter the court’s underlying
conclusion as provided in the court’s August 29, 2016 Memorandum and
Order granting the defendants’ motions to dismiss and denying the plaintiff’s
25
request to amend her complaint. Accordingly, the judgment shall stand. An
appropriate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: November 10, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-1479-02.wpd
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