On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 86-0695.
Sloviter and Stapleton, Circuit Judges, and Shapiro, District Judge.*fn*
Commonwealth Bank & Trust Company, N.A., the executor of the estate of Frank and Betty Lent, appeals from the order of the district court dismissing its claim brought under 42 U.S.C. § 1983 alleging that the Lents, who were murdered by an escaped prisoner, were deprived of their constitutional rights through the actions of the defendant prison and county officials. I.
In reviewing the dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), we must construe the complaint most favorably to the plaintiff and accept as true all the well-pleaded allegations therein. The complaint alleges that the Lents were residents of Potter County; that Elmer Slingerland, a prisoner, was confined in the Potter County Jail on July 22, 1985 on charges of homicide, burglary, robbery and theft in the April 15, 1985 murder of a Potter County resident who had been shot several times; that Slingerland was being held on $250,000 bail; that sometime in the evening on July 24, 1985 two turnkeys and other agents of the Potter County jail supervised recreation in the jail yard and that when the prisoners were returned to their cells no head count was conducted; that it was the policy of the jail not to take counts because of a series of inoperable locks in the cell block area; and that on the morning of July 25, 1985 employees of the jail discovered that Slingerland had escaped.
A ladder from the recreation yard had been placed inside one of the exterior walls of the jail. The complaint alleges that Slingerland used the ladder "as well as the deteriorating condition of the wall," trees outside the wall, and horseshoes from the recreation yard to scale the wall and descend to the street outside the jail or in the alternative that he used unsecured access to windows and the roof of the jail and then scaled the interior aspect and top of the jail wall to escape. App. at 9-10. According to the complaint, after escaping, Slingerland stole a handgun from a Potter County farm home and used that handgun in the shooting deaths of the Lents.
The complaint alleges that defendants Dale "Bill" Russell, the Potter County sheriff, and the Potter County Commissioners*fn1 knew or should have known that deficiencies in the internal locking mechanisms of the jail, deficiencies in other portions of the jail including the jail wall and adjacent trees external to the wall and deficiencies in the training and supervision of the jail's turnkeys could lead to the injuries suffered by the Lents; that "municipal officials did have knowledge of inadequate jail conditions and security since Pennsylvania Department of Corrections Reports regularly faulted the facility and procedures at the Potter County Jail"; that defendants failed to remedy the deficiencies, institute proper correctional procedures and train and supervise jail employees; and that defendants' failure to act constituted "gross negligence, reckless indifference, and wilful neglect" of the rights of the Lents. App. at 12-13. The complaint alleges that the acts or omissions of the defendants who are supervisory municipal officials constituted an official policy which resulted in the Lents' deaths and that, since Slingerland, the person whose affirmative conduct caused the harm, was under the direct control or supervision of the defendants, the Lents' death can be attributed to them. App. at 12.
Count I of the complaint alleges a claim under § 1983 for loss of the Lents' "liberty interest in their expectation of continuing life and property interest in the ownership, use and continued enjoyment of their real and personal property" in violation of their rights under the Fourteenth Amendment. App. at 11. Counts II, III and IV allege state claims.
The district court dismissed the § 1983 claim pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court, relying on Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), held that Slingerland was not an agent of the state, that the defendants had no reason to believe that the Lents were in any greater danger than the public at large, and that there was no "special relationship" between Potter County and the Lents which created an affirmative duty of care and protection. App. at 33-37. The district court also dismissed the pendent state law claims. Plaintiff appeals.
The complaint adequately alleges that the defendants were acting under color of state law, see Riley v. Jeffes, 777 F.2d 143, 145 (3d Cir. 1985), that the Lents were deprived of interests in life and property, id., and that the defendants acted with the reckless indifference or callous disregard that will support a claim of violation of the Fourteenth Amendment under § 1983. See Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 670, 88 L. Ed. 2d 677 (1986), aff'g Davidson v. O'Lone, 752 F.2d 817, 828 (3d Cir. 1984) (in banc). The facts alleged, however, implicate yet another requirement of § 1983, i.e. that the constitutional deprivation alleged be fairly attributable to defendants' conduct. As the district ...