Liedy v. Borough of Glenolden , 117 F. App'x 176 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-24-2004
Liedy v. Glenolden
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3539
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3539
DAVID W. LIEDY; KATHLEEN E. LIEDY, individually and as
co-personal representatives of the Estate of Roxanne Liedy
and as the guardians of Amanda Liedy, a minor,
Appellants
v.
BOROUGH OF GLENOLDEN; EDWARD COOKE, individually and as a
police officer; JOHN/JANE DOE #1, EMPLOYEE OF GLENOLDEN
POLICE DEPARTMENT; COUNTY OF DELAWARE OFFICE OF THE DISTRICT
ATTORNEY; JOHN/JANE DOE #2, EMPLOYEE OF DELAWARE COUNTY;
DELAWARE COUNTY BOARD OF PRISON INSPECTORS; WACKENHUT
CORECTIONS CORP., ta WWC; JOHN/JANE DOE #3, EMPLOYEE OF
WACKENHUT CORRECTIONS CORP.; MATTHEW ILLICH; RAQUEL
LEWANDOWSKI
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(Civ. A. No. 01-4361)
District Judge: The Honorable Stewart Dalzell
Submitted Pursuant to LAR 34.1(a)
November 19, 2004
Before: ROTH and SMITH, Circuit Judges, and DEBEVOISE,* District Judge
(Filed: November 24, 2004)
OPINION OF THE COURT
* The Honorable Dickinson R. Debevoise, Senior District Judge for the District of New
Jersey, sitting by designation.
SMITH, Circuit Judge
Appellants David and Kathleen Leidy are the brother and sister-in-law of the
decedent, Roxanne Leidy, and the co-personal representatives of her estate. At the time
of the complaint, Appellants were also the guardians of the then-minor plaintiff,
daughter of the decedent, and rape victim, Amanda Leidy. The remaining Appellees are
the Borough of Glenolden, its Police Chief, Edward Cooke, and a Glenolden Patrolman,
Matthew Illich (collectively “Glenolden Defendants”). The Leidys sued the Glenolden
Defendants alleging that their failure to act deprived Roxanne and Amanda Leidy of
their liberty in violation of the Due Process Clause of the Fourteenth Amendment of the
United States Constitution. The District Court granted summary judgment for the
Glenolden Defendants. We Affirm.
Facts
The facts of Gerald Bennett’s unsuccessful surrender on an arrest warrant six
days before he perpetrated the heinous crimes on Roxanne and Amanda Leidy are
captured in great detail in the District Court’s opinion. See Leidy v. Glenolden, 277 F.
Supp. 2d 547, 550-557 (E.D. Pa. 2003). We recount here only those facts necessary to
our decision.
Gerald Bennett served nearly a year in prison following his guilty plea to
indecent assault. A condition of his February 1999 parole was that he attend sex
offender treatment classes. Because Bennett repeatedly failed to attend treatment,
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admitted to using drugs, and refused to divulge his address, his probation officer
obtained a bench warrant for his arrest, and instructed Bennett to turn himself in to
police.
At 5:42 p.m. on August 26, 1999, Bennett appeared at the Glenolden Police
Station to surrender on the warrant. Bennett told the officer on duty, Matthew Illich,
that he was turning himself in at the direction of his probation officer, but did not tell
Illich the nature of the charges for which he was on parole, nor did he give his address.
Glenolden’s departmental policy required a “hard copy” verification of the warrant to
take into custody a person surrendering on a bench warrant. Illich took Bennett’s
identification information, and, according to Glenolden practice, Illich contacted the
Delaware County Emergency Communications Center (“DelCom”) to confirm the
existence of the warrant.
The DelCom dispatcher’s check of two electronic databases and the Delaware
County “bench book” indicated that an outstanding warrant for Bennett’s arrest existed.
After relating this information to Illich, the DelCom dispatcher then called the Delaware
County Prison’s Intake Unit, where the actual warrants were kept, to confirm its
existence. Because of a communication error between the DelCom dispatcher and the
Intake Unit’s clerk, the clerk found neither a listing of the warrant in the electronic list
of all Delaware County bench warrants nor the warrant itself in the file cabinet. Illich
and Police Chief Edward Cooke, who by this time had been consulted by Illich and who
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himself had talked with Bennett, determined that without a “hard copy” of the warrant,
they could no longer hold Bennett. 1 Bennett left the police station at approximately
6:28 p.m.
While DelCom and the Intake Unit were checking for Bennett’s warrant, Illich
had contacted Constable Jerry Bosch to drive to the station to transport Bennett to the
prison. When informed that the warrant could not be located at the prison, Bosch
contacted the Intake Unit himself, and relaying Bennett’s information accurately,
determined that in fact the warrant for Bennett’s arrest was on file at the prison. When
Bosch notified Illich, Illich went in fruitless search of Bennett, who had left the station
just five to ten minutes before. Six days later, Bennett strangled and killed Roxanne
Leidy, in whose house he had been boarding, and raped Amanda Leidy at knifepoint.
Jurisdiction and Standard of Review
The District Court exercised federal question jurisdiction, 28 U.S.C. § 1331, over
the plaintiffs’ civil rights claim, 42 U.S.C. § 1983. We have jurisdiction over this
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The Delaware County and Glenolden Police Department policy of confirming the
existence of the warrant with the Intake Unit has three related rationales. First, the
electronic databases and the “bench book” are not legal documents. Second, because they
are merely derivative of warrants, these sources add a layer of human error (potentially
indicating a warrant on a citizen when none ever existed), and include “stale” warrants,
the information of which has not yet been updated in the database (potentially showing as
“active” a warrant that has been rescinded). Third, the prison will not accept an inmate
unless the constable has a warrant for the person in custody. Confirming warrants thus
protects citizens from wrongful arrest by reducing clerical error and ensuring that only
active warrants are enforced.
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appeal of the District Court’s final judgment, 28 U.S.C. § 1291.2Our review of the District Court’s grant of summary judgment is plenary.
DeFelice v. Aetna Healthcare, 346 F.3d 442, 445 (3d Cir. 2003). We apply the same
test used by the District Court, i.e., whether, viewing the evidence in the light most
favorable to the non-moving party, the moving party has met its threshold burden of
showing the absence of a genuine issue of material fact. O’Donnell v. United States,
891 F.2d 1079, 1081-82 (3d Cir. 1989). Essentially, the inquiry becomes “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, 477 U.S. 242, 251-52 (1986). Further, “[i]t follows from the[] settled principles
[of summary judgment standards] that if the factual context renders [the nonmoving
parties’] claim implausible . . . [they] must come forward with more persuasive
evidence to support their claim than would otherwise be necessary.” Matushita Elec. v
Zenith Radio, 475 U.S. 574, 587 (1986); see Williams v. West Chester, 891 F.2d 458,
460 n.2 (3d Cir. 1990) (“Matsushita’s principles arguably apply only to summary
judgment motions in antitrust cases. At the very least, however, this language
reinforces the point made more generally in Liberty Lobby.”).
Discussion
2
The District Court also exercised supplemental jurisdiction over the plaintiffs’ state tort
claims against the individual defendants, 28 U.S.C. § 1367, but the Leidys have not
appealed the District Court’s determination that the defendants before us are immune
from liability on these claims.
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Section 1983 provides a civil remedy for plaintiffs who have been deprived of a
right secured by the Constitution or federal law by a person acting under color of state
law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Although the state generally has no
affirmative duty to protect citizens from the violent acts of private parties, this Court
has joined several courts of appeals in recognizing § 1983 claims under the “state-
created danger theory of liability.” The Leidys base their civil rights claim on this
theory.
The state-created danger theory was first suggested by the Supreme Court in
DeShaney v. Winnebago County. 489 U.S. 189, 201 (1989) (noting that § 1983 liability
may lie if the state played a part in creating, or rendering a person more vulnerable to, a
danger). This Court adopted the theory in Kniepp v. Tedder. 95 F.3d 1199, 1201 (3d
Cir. 1996). The state-created danger theory requires a plaintiff to establish each of four
common 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; (3) there existed some relationship
between the state and the plaintiff; (4) the state actors used
their authority to create an opportunity that otherwise would
not have existed for the third party’s crime to occur.
Kniepp, 95 F.3d at 1208 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d
Cir. 1995)).
The Leidys’ failure on the fourth element of the state-created danger analysis was
the “fundamental reason” the District Court rejected the plaintiffs’ civil rights claim.
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We agree with the District Court’s determination regarding this element, and we limit
our discussion to it.
Often stated in terms of the difference between affirmative acts by government
officials, in which case § 1983 liability may attach, see Wood v. Ostrander, 879 F.2d
583, 588 (9th Cir. 1989) (acts of arresting a driver, impounding his vehicle, and leaving
a woman alone at night in a high-crime area a sufficient “assertion of government
power”); Cornelius v. Town of Highland Lake, 880 F.2d 348, 357 (11th Cir. 1989)
(placing inmates incarcerated for violent crimes in work release program without
adequate supervision “affirmatively created a potentially dangerous situation”), and
omissions by them, in which case § 1983 liability is precluded, see Estate of Amos v.
City of Page, 257 F.3d 1086, 1091 (9th Cir. 2001) (poor rescue attempt did not
increase the danger to person who left the scene of an accident); Gregory v. City of
Rogers, 974 F.2d 1006, 1012 (8th Cir. 1992) (en banc) (removing designated driver
from vehicle, leaving intoxicated occupant who later crashed car did not affirmatively
place occupant in danger), this Court has noted the difficulty in drawing this distinction
in particular cases. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914-15 (3d Cir.
1997) (citing Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). To better
distinguish cases in which a state actor can be said to have “created” a theretofore
nonexistent opportunity for a third party to perpetrate a crime from those constituting a
“mere” failure to protect, we have observed that “the dispositive factor appears to be
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whether the state in some way placed the plaintiff in a dangerous position that was
foreseeable, and not whether the act was more appropriately characterized as an
affirmative act or an omission.” Morse, 132 F.3d at 915.
In Kniepp, police officers intercepted a couple in a shouting match as they
walked home from a bar late on a cold night. The police allowed the husband to
continue home to care for their child. Soon thereafter, the officers left a “severely
inebriat[ed]” Samantha Kneipp unattended. She was later discovered unconscious on
an embankment. She suffered complications from hypothermia which rendered her
severely disabled. We determined that a reasonable jury could infer from the submitted
evidence that by allowing the husband to leave the scene, the police implied that they
would see Mrs. Kniepp home safely. Thus, we reversed the District Court’s grant of
summary judgment and remanded the case for a trial “as to whether the police officers
affirmatively placed Samantha in a position of danger.” Kniepp, 95 F.3d at 1211. By
separating a visibly intoxicated Samantha Kniepp from her husband, her “source of
protection” at the time, we reasoned that when they abandoned her, the police increased
the danger that Mrs. Kniepp would suffer harm. Id. at 1210.
In Morse, by contrast, a back door to a school, which was normally locked, was
kept unlocked and occasionally propped open while various contractors worked on the
school. A mentally ill local resident entered the school, likely through the unsecured
back door, and fatally shot a teacher, Diane Morse. The victim’s family brought a §
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1983 action alleging that the school’s action of unlocking the door and allowing public
access to Morse’s classroom subjected her to a dangerous situation. Although
unlocking the back door and enabling unfettered access to the school was arguably an
affirmative act, we denied the civil rights claim because the “deadly attack was not a
foreseeable and fairly direct result of defendants’ behavior.” Morse, 132 F.3d at 915-
16.
Here, the District Court characterized the defendants’ failure to arrest as simply a
failure to protect citizens from Bennett by not incapacitating him, and observed that the
lesson of DeShaney and the state-created danger line of cases is that a failure to protect,
without “something more,” does not satisfy § 1983. 277 F. Supp. 2d at 560; id. at 561(illustrating that the “something more” may be an official instigation of private
violence, officers “plac[ing] people in harm’s way who would otherwise not have been
at risk,” or officers “cut[ting] people off from their private sources of protection”).
After noting that the state protected citizens from Bennett earlier by imprisoning him
and placing him on parole upon his release, and attempted to do so by issuing a bench
warrant, the District Court concluded: “In the absence of any state action, Bennett still
would have committed these offenses, or, to put it another way, there is no evidence to
conclude that he would not have. State action neither made Bennett more violent nor
made Roxanne Leidy and Amanda Leidy more vulnerable to Bennett.” Id. at 560. We
agree with this assessment, and reject the plaintiffs’ argument that the District Court
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misunderstood the essence of their claim.
The plaintiffs contend that the Glenolden Defendants did not simply fail to
protect the Leidys; rather, they assert that the “something more” was that the
defendants’ failure to arrest Bennett placed the victims in harm’s way by emboldening
Bennett to commit these extreme acts of violence. The plaintiffs further hypothesize
that the warrant itself “placed stressful influences on Bennett,” and that his “narrow[]
escape” from police after the warrant’s issuance may have led Bennett “to believe that
he could thumb his nose at the Courts, Probation Office, and society,” thus making
Bennett’s heinous crimes more likely.
The plaintiffs’ implausible conjecture, so far removed from the evidence, could
not lead a factfinder to reasonably conclude that the defendants’ conduct “placed the
plaintiff in a dangerous position that was foreseeable.” Morse, 132 F.3d at 915. Bennett
voluntarily attempted to turn himself in on an arrest warrant. There was no indication
that the officers knew Bennett was capable of committing such violent, heinous crimes,
much less that he was on the verge of doing so. Bennett simply stated that his probation
officer told him to turn himself in for violating his parole. Absent an indication from
Bennett himself, the defendants had no way of knowing that the violation underlying
Bennett’s parole involved a sex crime. As the plaintiffs note, Bennett had no reported
criminal contact with police in the six month interim between his parole and August 26,
1999, nor did Bennett provide an address to Illich or Cooke that would have enabled
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them to track down and arrest Bennett once the existence of a warrant was verified.
Indeed, Bennett’s transience was a factor that led the probation officer to seek a bench
warrant for his arrest. This observation speaks not only to the inability of Glenolden
police to seek Bennett in the days between his attempted surrender and his crimes, it
also indicates that the defendants were unable to foresee the Leidys as potential victims.
See Morse, 132 F.3d at 913 n.12 (“Where the state actor has allegedly created a danger
towards the public generally, rather than an individual or group of individuals, holding a
state actor liable for the injuries of foreseeable plaintiffs would expand the scope of the
state-created danger theory beyond its useful and intended limits.”). The Glenolden
Defendants were thus entitled to summary judgment as a matter of law.
We note for the sake of completeness that because we conclude that there was no
constitutional tort in this case, there also is no municipal liability to attach to the
Borough of Glenolden. Monnell v. Dep’t of Social Serv’s of the City of New York, 436
U.S. 658, 691 (1978); Brown v. Pa. Dep’t of Health Emergency Med. Servs. Training
Inst., 318 F.3d 473, 482 (3d Cir. 2003). The judgment of the District Court is affirmed.
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