COLE v. LILLER
Filing
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MEMORANDUM AND OPINION on Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(5), 41(b), and 12(b)(6). Defendant's Motion will be granted in part and denied in part. Defendant's Motion will be granted as it relates to any First Amendment claim, and denied in all other respects. An appropriate order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on 5/23/12. (vad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH B. COLE,
Plaintiff,
v.
TIMOTHY LILLER,
Big Beaver Falls Area
School District Industrial
Technology Instructor, in
his individual capacity,
Defendant.
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Civil Action No. 10-1512
Chief Magistrate Judge Lenihan
ECF No. 13
MEMORANDUM OPINION
Presently before the Court is Defendant Timothy Liller’s (“Defendant” or
“Liller”) Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5), 41(b),
and 12(b)(6). (ECF No. 13.) Defendant’s Motion will be granted in part and denied in
part. Defendant’s Motion will be granted as it relates to any First Amendment claim, and
denied in all other respects.
PROCEDURAL BACKGROUND
The above-captioned Complaint was filed on November 11, 2010. (ECF No. 1.)
On August 3, 2011, Plaintiff moved for an extension of time to serve the Complaint.
(ECF No. 2.) The Court granted Plaintiff’s Motion for Extension of Time on August 4,
2011, and ordered that the time for serving the Complaint be extended an additional 30
days. (ECF No. 3.) Defendant was served on August 11, 2011. (ECF No. 6.)
Thereafter, on August 22, 2011, the parties entered into a “Stipulation for Extension of
Time” to answer, move or otherwise respond. (ECF No. 7.)
Plaintiff had filed a previous case arising out of the same facts and circumstances
against the Big Beaver Falls Area School District only at Civil Action No. 08-776. On
November 12, 2009, this Court dismissed that case with prejudice, granting the Big
Beaver Falls Area School District’s Motion to Dismiss Plaintiff’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Cole
v. Big Beaver Falls Area Sch. Dist., 08-cv-776, 2009 WL 3807185 (W.D. Pa. Nov. 12,
2009) (Lenihan, J.).
FACTS
Plaintiff, Joseph B. Cole (“Plaintiff” or “Cole”) avers that on March 10, 2006, in
the Industrial Materials Classroom of the Big Beaver Falls Area Senior High School,
“through the actions of Defendant Liller, Plaintiff Cole was directed to execute a blind
and particularly difficult cut on a ten-inch arbor table saw on the four edges of the box
portion of a table Plaintiff Cole had constructed.” (Complaint, ECF No. 1 at && 3-5,
hereinafter “ECF No. 1 at & __”.) Plaintiff continues that “[i]n so directing the Plaintiff
Cole to execute this cut, Defendant Liller also directed the removal of a guard on the saw
blade, which guard was otherwise designed and intended to protect the Plaintiff Cole
from injury.” (ECF No. 1 at & 7.) While Plaintiff was executing the four different cuts
that required several minutes each to complete, Plaintiff avers that “Defendant Liller
walked away from the saw and ceased supervising the Plaintiff Cole.” (ECF No. 1 at &&
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8-9.) Next Plaintiff alleges that “[i]n so directing the Plaintiff Cole to execute the four
cuts without the blade guard in place and absent any supervision by his instructor, the
Defendant Liller acted with deliberate indifference to the rights and personal safety of the
Plaintiff . . . .” (ECF No. 1 at & 11.) Finally, the Plaintiff avers that “Defendant Liller
affirmatively acted to cause the harm which would otherwise not have existed had the
Defendant Liller not directed the cuts absent a blade guard and adequate supervision.”
(ECF No. 1 at & 12.) Relatedly, Plaintiff continues as follows:
Defendant Liller placed the Plaintiff Cole in a dangerous position by:
a.
b.
c.
d.
e.
f.
g.
h.
i.
Instructing the Plaintiff to remove the guard from
the saw blade.[sic]
Directing the removal of the guard on the saw to
protect Plaintiff and others using the saw for classes
sponsored by the School District;
Permitting Plaintiff and others similarly situated to
utilize the table saw without a guard on the blade;
Ignoring notice, actual and/or constructive, of the
absence of the guard on the saw that this would
create a dangerous condition and should have
realized that it presented an unreasonable risk of
harm to the students;
Failing and neglecting to give due notice or warning
to the Plaintiff or others of said hazardous,
dangerous and unsafe condition;
Failing to adequately inspect the table saw in order
to discover the defect;
Permitting negligent care, custody and control of
the saw that created a dangerous condition;
Instructing students to make cuts on the table saw
when said saw lacked a blade guard that could be
engaged during this particular cut or type of
activity;
Providing inexperienced or novice woodworking
students with a table saw that lacked adequate
safety devices.
(ECF No. 1 at & 12.)
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In conclusion, Plaintiff alleges that his injuries “were the foreseeable result of the
deliberate indifference of the Defendant Liller as set forth above, which constitutes a
state-created danger . . . .” (ECF No. 1 at & 14.)
LEGAL STANDARDS and ANALYSES
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5)
Federal Rule of Civil Procedure 12(b)(5) provides that a defendant may ask the
court to dismiss a complaint when a plaintiff has failed to properly serve the defendant
with the summons and complaint. “[T]he party asserting the validity of service bears the
burden of proof on that issue.” Grand Entm’t Group, Ltd. v. Star Media Sales, Inc., 988
F.2d 476, 488 (3d Cir. 1993) (citation omitted).
Defendant argues that Plaintiff’s Complaint should be dismissed pursuant to Rule
12(b)(5) for the following reasons: 1) Plaintiff failed to serve the Summons and
Complaint within 120 days after the Complaint was filed pursuant to Federal Rule of
Civil Procedure 4(m); 2) Plaintiff did not acquire a summons under the guidelines set
forth in Federal Rule of Civil Procedure 4(c)(1); 3) the extension of the time to make
service ordered by the Court was not supported by good cause; and 4) even though
Plaintiff’s filing of the Complaint was made one day before the expiration of the statute
of limitations, “such a filing does not guarantee preservation of the statute when service
is so blatantly ignored.” (ECF No. 14 at 8.)
Plaintiff responds that he did not serve the Complaint within 120 days after filing
because he indicated that the 2008 civil action was related to the present action on the
Civil Cover Sheet. Because Defendant Liller is represented by the same counsel who
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represented the Big Beaver Falls Area School District in the prior action, Plaintiff
assumed that the present action “would be served electronically to present counsel as a
result of the prior action.” (ECF No. 16 at 3.) Plaintiff further submits that once he was
notified by the Court that the Complaint had not been served, he immediately filed a
Motion to Extend Time to Effect Service.
Defendant’s Motion to Dismiss pursuant to Rule 12(b)(5) must be denied.
Rule 4(m) provides in part as follows:
Time Limit for Service. If a defendant is not served
within 120 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But
if the plaintiff shows good case for the failure, the court
must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Consequently, a court must grant an extension of time to effect
service if good cause exists for the failure to effect service. If good cause has not been
shown, however, the court may still grant an extension in the exercise of its discretion.
Holmes v. St. Vincent Health Ctr., 06-cv-199E, 2007 WL 2541790, at *2 (W.D. Pa. Aug.
31, 2007) (quoting McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir.
1998) and citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.
1995)). Here, the Court in its discretion, granted Plaintiff an extension of time for a
specified period, and Plaintiff effected service within a week.1
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In the Order granting Plaintiff’s Motion to Extend Time at ECF No. 3, this Court did not indicate whether
good cause existed for Plaintiff’s failure to effect service, or whether the Court was exercising its discretion
to extend time in the absence of good cause. The Court finds that Plaintiff’s assumption, that service would
be made electronically because he indicated on the Civil Cover Sheet that the present action was related to
Plaintiff’s previous civil action, is unreasonable. See MCI Telecommunications Corp. v. Teleconcepts, Inc.,
71 F.3d 1086, 1097 (3d Cir. 1995) (one factor considered by courts in determining existence of good cause
is reasonableness of plaintiff’s efforts to serve). Therefore, the Court exercised its discretion to extend the
time for service in the absence of good cause.
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The Advisory Committee Note directed to the 1993 Amendments to Federal Rule
of Civil Procedure 4(m) provides guidance as to what this Court may consider when
deciding to exercise its discretion to extend time for service in the absence of good cause.
The Committee Notes provide that, although the list is not exhaustive, “[r]elief may be
justified, for example, if the applicable statute of limitations would bar the refiled action .
. . .” Fed. R. Civ. P. 4(m) advisory committee’s note (1993). Here, as discussed by
Defendant, Plaintiff’s action would be barred if, instead of extending time for service, the
Court dismissed the action without prejudice. (ECF No. 14 at 8.) Consequently, the
Court exercised its sound discretion to extend time for service in the absence of good
cause.
As to Defendant’s argument that Plaintiff did not acquire a summons under the
guidelines set forth in Federal Rule of Civil Procedure 4(c)(1), the docket sheet at ECF
Nos. 5 & 6 reflect that a summons was issued in this case. Defendant does not describe
how the summons failed to comply with the guidelines set forth in Rule 4(c)(1).
Finally, Defendant’s argument that Plaintiff’s filing of the Complaint was made
one day before the expiration of the statute of limitations, does not change the fact that it
was in fact filed before the running of the statute.
For all the above reasons, Defendant’s Motion to Dismiss pursuant to Rule
12(b)(5) will be denied.
Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b)
Federal Rule of Civil Procedure 41(b) provides as follows:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
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defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not
under this rule—except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19—
operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b).
Defendant argues that Plaintiff’s Complaint should be dismissed pursuant to Rule
41(b) for the same reasons articulated with regard to Rule 12(b)(5). Like Defendant,
Plaintiff offers no new arguments in response to Defendant’s Motion to Dismiss pursuant
to Rule 41(b).
For the same reasons discussed, supra, regarding Defendant’s Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12 (b)(5), Defendant’s Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 41 (b) will be denied.
Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183
(3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 129 S.
Ct.1937, 1949 (May 18, 2009) (citing Twombly, 550 U.S. at 555-57). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129
S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The Supreme Court further explained:
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The plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’”
Id. (citing Twombly, 550 U.S. at 556-57).
In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. Aug. 18, 2009), the United
States Court of Appeals for the Third Circuit discussed its decision in Phillips v. County
of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008) (construing Twombly in a civil rights
context), and described how the Rule 12(b)(6) standard had changed in light of Twombly
and Iqbal as follows:
After Iqbal, it is clear that conclusory or “bare-bones”
allegations will no longer survive a motion to dismiss:
“threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949. To prevent dismissal, all civil
complaints must now set out “sufficient factual matter” to
show that the claim is facially plausible. This then “allows
the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 1948.
The Supreme Court's ruling in Iqbal emphasizes that a
plaintiff must show that the allegations of his or her
complaints are plausible. See Id. at 1949-50; see also
Twombly, 505 U.S. at 555, & n. 3.
Fowler, 578 F.3d at 210.
Thereafter, In light of Iqbal, the United States Court of Appeals for the Third
Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), set forth the
following two-prong test to be applied by the district courts in deciding motions to
dismiss for failure to state a claim:
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint's well-pleaded facts as true, but may disregard
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any legal conclusions. [Iqbal,129 S. Ct. at 1949]. Second, a
District 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 1950. In
other words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to “show”
such an entitlement with its facts. See Phillips, 515 F.3d at
234-35. As the Supreme Court instructed in Iqbal,
“[w]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show [n]’-‘that the
pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1949. This
“plausibility” determination will be “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
Fowler, 578 F.3d at 210-11.
Defendant argues that Plaintiff’s Complaint must be dismissed pursuant to Rule
12(b)(6) for two reasons: 1) no facts averred in the Complaint suggest any violation of
Plaintiff’s First Amendment rights; 2) Plaintiff has failed to plead a violation of state
created danger theory and Defendant is therefore entitled to qualified immunity.
Plaintiff offers no response to Defendant’s arguments concerning the First
Amendment. In response to Defendant’s arguments concerning Plaintiff’s attempt to
state a claim pursuant to the state created danger theory of liability, Plaintiff contends that
he has alleged sufficient facts to state a claim pursuant to the state created danger theory.
SECTION 1983
Section 1983 of the Civil Rights Act provides as follows:
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 any other person within
the jurisdiction thereof to the deprivation of any rights,
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privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must
demonstrate that the conduct in the complaint was committed by a person or entity acting
under color of state law and that such conduct deprived the plaintiff of rights, privileges
or immunities secured by the Constitution or the laws of the United States. Piecknick v.
Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983
does not create rights; it simply provides a remedy for violations of those rights created
by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204
(3d Cir. 1996).
State Created Danger
In DeShaney v. Winnebago Cnty. Dep=t of Soc. Servs., 489 U.S. 189 (1989), the
United States Supreme Court noted that generally, the Due Process Clause of the
Fourteenth Amendment to the United States Constitution does not impose an affirmative
duty upon the state to protect citizens from the acts of private persons. Id. at 198-200. In
DeShaney, the United States Supreme Court rejected the claim of a boy and his mother
that local officials, who had repeatedly attempted to ensure the boy=s safety from his
abusive father, were liable under the “special relationship” theory when the boy remained
in his father=s custody and was so badly beaten that the boy suffered severe brain damage.
Id. at 195-96. In rejecting plaintiffs= claim pursuant to the “special relationship” theory,
the Court stated that “when the State takes a person into its custody and holds him there
against his will, the Constitution imposes upon it a corresponding duty to assume some
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responsibility for his safety and general well-being.” Id. at 199-200. The Court
continued its analysis with the following dicta that provided the foundation for the “statecreated danger” theory of liability:
While the State may have been aware of the dangers Joshua
faced in the free world, it played no part in their creation,
nor did it do anything to render him any more vulnerable to
them. That the State once took temporary custody of
Joshua does not alter the analysis, for when it returned him
to his father=s custody, it placed him in no worse position
than that in which he would have been had it not acted at
all; the State does not become the permanent guarantor of
an individual=s safety by having once offered him shelter.
Under these circumstances, the State had no constitutional
duty to protect Joshua.
Id. at 201. The United States Supreme Court emphasized that the substantive component
of the Due Process Clause is “a limitation on the State=s power to act, not . . . a guarantee
of certain minimal levels of safety and security.” Id. at 195. The DeShaney court
continued that historically, the purpose of substantive due process “was to protect the
people from the State, not to ensure that the State protected them from each other.” Id. at
196.
In Kneipp, the United States Court of Appeals for the Third Circuit relied on the
language in DeShaney to recognize that a plaintiff alleging a substantive due process
violation pursuant to 42 U.S.C. ' 1983 could proceed in accordance with a “state-created
danger” theory where a state does play a part in the creation of the dangers faced by a
private person, or where through its actions, the state renders the individual more
vulnerable to them. Kneipp, 95 F.3d at 1205, 1211. In order to prevail on a state-created
danger claim, a plaintiff must prove the following:
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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.
Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006) (quoting Bright v. Westmoreland
Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes
omitted)). A plaintiff=s failure to satisfy any one of the above elements will defeat the
state created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d
Cir. 1997).
Here, Plaintiff has sufficiently alleged all elements of the state created danger
theory. First, Plaintiff has alleged that the harm ultimately caused was foreseeable and
fairly direct. Plaintiff avers that the harm he suffered, namely the severing of all five
fingers of his left hand, was a foreseeable and direct result of Defendant’s directive that
the guard on the saw blade be removed when executing “a blind and particularly difficult
cut on a ten-inch arbor table saw,” and at the same time, ceasing to supervise Plaintiff by
walking away from the saw while Plaintiff was attempting to execute the blind and
difficult cut. (ECF No. 1 at ¶¶ 5, 7, 9, 14-15.)
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Second, Plaintiff has alleged facts that Defendant acted with a degree of
culpability that shocks the conscience. Whether a state actor acts with a degree of
culpability that shocks the conscience “depends largely on the circumstances of the case.”
Phillips v. County of Allegheny, 515 F.3d 224, 240 (3d Cir. 2008). In discussing its then
recent case of Sanford v. Stiles, 456 F.3d 298 (3d Cir. 2006), the Phillips court elaborated
as follows:
The time in which the government actors had to
respond to an incident is of particular significance. For
example, in Sanford, we stated that “[t]he level of
culpability required to shock the conscience increases as
the time state actors have to deliberate decreases.”
[Sanford, 456 F.3d] at 306. We then concluded that
although intent to cause harm must be found in a
“hyperpressurized environment,” where officials are
afforded the luxury of a greater degree of deliberation and
have time to make “unhurried judgments,” deliberate
indifference is sufficient to support an allegation of
culpability. Id. We further noted “the possibility that
deliberate indifference might exist without actual
knowledge of a risk of harm when the risk is so obvious
that it should be known.” Id. Finally, where the
circumstances require a state actor to make something less
exigent than a “split-second” decision but more urgent than
an “unhurried judgment,” i.e., a state actor is required to act
“in a matter of hours or minutes,” a court must consider
whether a defendant disregarded a “great risk of serious
harm rather than a substantial risk.” Id.
Phillips, 515 F.3d at 240-41 (emphasis in original).
The facts alleged in Plaintiff’s Complaint suggest that Defendant was not acting
in a “hyperpressurized environment.” He had sufficient time to proceed deliberately in
light of the allegations that he was providing instruction in an Industrial Materials
Classroom. Accepting these averments as true, Defendant was not acting in a
hyperpressurized environment; instead, he had the luxury of time to make unhurried
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judgments as to how he would instruct his students. Consequently, in order for
Defendant’s conduct to “shock the conscience” under the facts and circumstances alleged
in the Complaint, Defendant’s behavior must reflect deliberate indifference to a
substantial risk of serious harm. Plaintiff has alleged that his injuries were the
foreseeable result of the deliberate indifference of Defendant in directing the removal of
the blade guard when executing a blind and particularly difficult cut. (ECF No. 1 at ¶¶ 5,
6, 14.) Consequently, Plaintiff has sufficiently alleged facts to support the state of mind
requirement of the state created danger theory.
Third, Plaintiff has averred the existence of the student-teacher relationship to
support the third element of the state created danger theory. That is Plaintiff avers that
Defendant “is the Industrial Technology Instructor at the Big Beaver Falls Area School
District,” and that Plaintiff “was a minor student in said high school and subject to the
instruction and direction of Defendant Liller.” (ECF No. 1 at ¶¶ 2, 3.) The teacherstudent relationship is one such that a student in an Industrial Materials Classroom would
be a foreseeable victim of an industrial materials instructor’s acts. See Phillips, 515 F.3d
at 242 (quoting Morse, 132 F.3d at 912) (“[T]he relationship requirement of the third
element ‘contemplates some contact such that the plaintiff was a foreseeable victim of the
defendant’s acts in a tort sense.’”)
Finally, Plaintiff has alleged facts sufficient to support the final element of the
state created danger theory, namely, that Defendant “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.” Sanford, 456 F.3d at 305. In
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Phillips, the court of appeals also discussed the fourth element regarding the requirement
of an affirmative act, emphasizing the following language in Bright:
“Liability . . . is predicated upon the states’ affirmative acts
which work to the plaintiff’s detriment in terms of exposure
to danger. It is the misuse of state authority, rather than a
failure to use it, that can violate the Due Process Clause.”
Phillips, 515 F.3d at 235 (quoting Bright, 443 F.3d at 282) (other citation omitted)
(emphasis added by Phillips court). The Phillips court continued that “[t]he line between
action and inaction may not always be clear. However, we have never found a statecreated danger claim to be meritorious without an allegation and subsequently showing
that state authority was affirmatively exercised in some fashion.” Id. at 235-36.
Here, the allegations in the Complaint sufficiently allege that Defendant acted
“affirmatively.” Specifically, Plaintiff alleges that when directing Plaintiff to execute the
blind and difficult cut, Defendant also directed the removal of the blade guard. (ECF No.
1 at ¶¶ 5, 7.) Hence, Plaintiff has alleged facts sufficient to support the fourth element of
the state created danger theory.
Therefore, Plaintiff has averred sufficient facts to state a plausible claim for relief
pursuant to the state created danger theory and the court need not reach the issue of
qualified immunity. Defendant’s Motion to Dismiss Plaintiff’s claim pursuant to the
state created danger theory arising under the Fourteenth Amendment Substantive Due
Process Clause will be denied.
First Amendment
Conversely, Plaintiff has failed to allege any facts to support a plausible claim for
relief pursuant to the First Amendment. In fact, the Plaintiff mentions the First
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Amendment only once in Paragraph 13 of the Complaint when setting forth his state
created danger claim. Moreover, Plaintiff appears to concede that he is not attempting to
state a First Amendment claim because he makes no attempt to respond to Defendant’s
arguments on this issue. See Defendant’s Brief in Support of Motion to Dismiss, ECF
No. 14 at 13-14. The facts and circumstances underlying the Complaint simply do not
support any claim for relief pursuant to the First Amendment.2 Therefore, Defendant’s
Motion to Dismiss any claim for violation of the First Amendment will be granted.
CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss will be granted
in part and denied in part. Defendant’s Motion will be granted as it relates to any First
Amendment claim, and denied in all other respects. An appropriate Order will follow.
BY THE COURT:
____________________________
LISA PUPO LENIHAN
Chief United States Magistrate Judge
May 23, 2012
cc: All counsel of record
Via electronic filing
2
The court of appeals in Phillips v. County of Allegheny has ruled that if a district court is dismissing a
claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte “permit a curative amendment unless
such an amendment would in inequitable or futile.” 515 F.3d 224, 245 (3d Cir. 2008). The Court in this
matter is recommending dismissal with prejudice and is not granting leave to amend because it believes
such amendment would be futile.
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