IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
April 13, 1999
ISABEL GONZALEZ, LOUIS GONZALEZ, ELIZABETH GONZALEZ, AND LOUIS GONZALEZ, JR.,
STATE OF NEW JERSEY, ET AL.,
The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
HON. JEROME B. SIMANDLE
SIMANDLE, District Judge
This matter is before the court on the motion of defendants Robert A. Largent and Josephina Martinez to dismiss plaintiffs' Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The primary issue is whether plaintiffs have adequately pleaded a cause of action against Largent and Martinez under the "state-created danger" theory in connection with the murder of plaintiffs' decedent, Franklin Township Police Officer Ippolito "Lee" Gonzalez, who was shot and killed by a paroled murderer. For the reasons discussed below, the court holds that plaintiffs have not adequately pleaded a "state-created danger" case against Largent and Martinez and, therefore, grants the defendants' motion to dismiss.
This case arises out of the murder of a New Jersey police officer by a convicted murderer who had been released on parole from a Pennsylvania correctional institution just a few months earlier.
On May 6, 1995, defendant Robert "Mudman" Simon shot and killed Franklin Township Police Officer Ippolito "Lee" Gonzalez during an otherwise routine traffic stop of a car in which Simon was a passenger. (Amended Complaint at ¶¶ 91-94.) Simon and the driver of the car, defendant Charles "Shovel" Staples, are members of the "Warlocks" motorcycle gang, a group with an alleged propensity for violence towards police officers. (Id. at ¶¶ 25-26, 37, 91.) Simon has since been convicted of the murder of Officer Gonzalez, while Staples has been convicted of related charges. (Id. at ¶¶ 95-96.)
Simon had been released on parole from a Pennsylvania prison where he was serving time for a 1974 Warlock-related murder just three months before he shot and killed Officer Gonzalez, despite a record of misconduct and violence during his incarceration that included drug use, suspected drug sales, the suspected murder of another inmate, and continued involvement with the Warlocks. (Id. at ¶¶ 38-41, 44, 60, 79.) Indeed, a January 6, 1993 report regarding a psychological evaluation of Simon characterized him as "a psychopath," and the Pennsylvania Board of Probation and Parole ("PBP&P") denied a parole application from Simon on January 21, 1993 because of the high risk of his continued involvement with the Warlocks and his need for substance abuse treatment. (Id. at ¶¶ 49-50.) The PBP&P hearing examiner who recommended Simon for parole in November 1994 conditioned the approval on Simon's abstinence from alcohol and his avoidance of contact with Warlocks. (Id. at ¶¶ 53.) Even before Simon's parole was finally approved, however, Staples began making arrangements for Simon to take up residence in a trailer park in Williamstown, New Jersey, an alleged Warlock stronghold. (Id. at ¶¶ 66- 69.)
Officer Gonzalez's family began this civil action by filing a Complaint on May 6, 1997. Plaintiff Isabel Gonzalez is Officer Gonzalez's sister-in-law and the administrator of his estate. (Id. at ¶ 8.) Plaintiff Louis Gonzalez Officer Gonzalez's brother and Isabel's husband. (Id. at ¶ 9.) Plaintiffs Elizabeth Gonzalez and Louis Gonzalez, Jr. are the children of Isabel and Louis Gonzalez. (Id. at ¶ 10.) Plaintiffs filed an Amended Complaint on June 6, 1997.
Largent and Martinez are PBP&P officials who played some role in the decision to release Simon on parole and to permit him to take up residence in Williamstown. (Id. at ¶ 21.) More specifically, Largent was the Director of Interstate Services for PBP&P at the time of Simon's release on parole and, in that capacity, he was responsible for overseeing the transfer of Simon to New Jersey. Martinez was an Institutional Parole Agent for PBP&P at Graterford Prison who was involved in the administrative preparations for Simon's transfer to New Jersey. On the basis of their personal involvement in Simon's transfer to New Jersey, the court denied an earlier motion to dismiss plaintiffs' Complaint against Largent and Martinez for lack of personal jurisdiction, while granting the motion with respect to the other Pennsylvania Defendants. See Gonzalez v. State of New Jersey, et al., Civil Action No. 97-2512, slip op. at 16-19 (D.N.J. June 29, 1998).
The main thrust of plaintiffs' Amended Complaint is that Simon should not have been released from prison on parole and permitted to take up residence in Williamstown. In Count I, plaintiffs allege that Largent and Martinez contributed to a "state-created danger" by approving Simon's release on parole and allowing him to take up residence in Williamstown without warning Officer Gonzalez and other police officers in the area, despite their knowledge of Simon's criminal history, his record of misconduct and violence while incarcerated, and his longstanding membership in the Warlocks, a group with an alleged well-known propensity for violence towards police officers, in violation of 42 U.S.C. § 1983. (Amended Complaint at ¶¶ 97-114.) In Count VI, plaintiffs allege that Largent and Martinez were deliberately indifferent to Officer Gonzalez's constitutional rights in enforcing allegedly defective PBP&P policies, customs and procedures and failing to provide adequate training, in violation of 42 U.S.C. § 1983. (Id. at ¶¶ 129-132.) Finally, in Count VII, plaintiffs allege that Largent and Martinez conspired with the other defendants to deprive Officer Gonzalez of his civil rights, in violation of 42 U.S.C. § 1985 and state conspiracy law.
A. Rule 12(b)(6) Motion to Dismiss Standard
A Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim upon which relief can be granted does not attack the merits of a case, but merely tests the legal sufficiency of a plaintiff's complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering such a motion, a district court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994); aff'd, 70 F.3d 291 (3d Cir. 1995). A district court also must accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). However, a district court need not credit a complaint's "bald assertions" or "legal conclusions." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997). A district court may not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Plaintiffs' State-Created Danger Claim
In Count I of the amended complaint, plaintiffs claim that Largent and Martinez contributed to a "state-created danger" actionable under 42 U.S.C. § 1983 by allowing Simon to take up residence in Williamstown without notifying police officers in the area. (Amended Complaint at ¶¶ 97-114). Plaintiffs allege that the defendants
created a specific danger to Plaintiff/Decedent and all police officers in and around Monroe and Franklin Townships by allowing a known violent murderer and member of the Warlocks motorcycle gang, a group known for its propensity for violence toward police officers, to be placed in residence within there (sic.) geographic area of enforcement without informing police personnel. (Id. at ¶ 103.)
In DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 194-97 (1989), the U.S. Supreme Court held that a state's failure to protect an individual from private violence generally does not constitute a violation of the Due Process Clause of the Fourteenth Amendment because the clause does not impose any duty on states to provide such protection or guarantee individuals minimal levels of safety or security. The Court rejected the argument that a state acquires an affirmative duty, enforceable through the Due Process Clause, to protect an individual from harm simply because it undertakes to do so, holding that the protections of the Due Process Clause are triggered when a state restrains an individual's freedom to act on his own behalf "through incarceration, institutionalization, or other similar restraint of personal liberty." Id. at 197-200. However, the Court left open the possibility that a state might deprive an individual of substantive due process if it played a part in the creation of a danger to that individual or did something to render that individual more vulnerable to harm. Id. at 201. This possibility has come to be known as the state-created danger theory.
The Third Circuit has held that under certain factual circumstances, "the state-created danger theory is a viable mechanism for establishing a constitutional claim under 42 U.S.C. § 1983." Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996). The court recognizes four essential elements of such a claim:
(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; and (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. Id. at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.), cert. denied, 516 U.S. 858 (1995)). Such a claim has its constitutional moorings in the substantive due process clause of the Fourteenth Amendment. Kneipp, 95 F.3d at 1204; Mark, 51 F.3d at 1141.
The Third Circuit has devoted considerable attention to the third essential element -- the existence of some relationship between the state and the victim-plaintiff. In Kneipp, for example, the court determined that a reasonable jury could find that the defendant police officer "exerted sufficient control over [the plaintiff] to meet the relationship requirement" based on the plaintiff's allegation that the police officer "placed [the plaintiff] in danger of foreseeable injury when he sent her home unescorted in a visibly intoxicated state in cold weather," leading to her death from exposure when she collapsed unconscious while walking home. Kneipp, 95 F.3d at 1209. The court emphasized that "[t]he relationship requirement under the state-created danger theory contemplates some contact such that the plaintiff was a foreseeable victim of a defendant's acts in a tort sense." Id. at 1209 n.22.
In Mark, on the other hand, the court held that the state- created danger theory was inapplicable because the plaintiff's claim was not "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." Mark, 51 F.3d at 1153. The plaintiff, whose automobile repair business was destroyed by an arson fire set by a volunteer fire fighter, claimed that the defendant volunteer fire company should be held liable under the state- created danger theory because it did not perform any psychological screening of applicants to weed out those with a proclivity to commit arson. Id. at 1138-40. The court rejected that argument, noting that "[w]hen the alleged unlawful act is a policy directed at the public at large . . . the rationale behind the rule disappears -- there can be no specific knowledge by the defendant of the particular plaintiff's condition, and there is no relationship between the defendant and the plaintiff." Id. at 1153.
In Morse v. Lower Merion School Dist., 132 F.3d 902, 912-14 (3d Cir. 1997), the Third Circuit held that in some cases, a plaintiff could satisfy the relationship element of the state-created danger claim by demonstrating the existence of a relationship between the defendant and a discrete group of potential victims. The case involved a day care teacher who was shot and killed in front of a classroom full of children by a local resident with a history of mental illness who had gained access to the school building through a rear door left unlocked to permit construction workers to enter and leave the building. Id. at 904. The plaintiff alleged that the defendants were liable under the state-created danger theory because they left the rear door unlocked even though they knew that intruders had entered the building through that door and committed acts of theft, vandalism, and at least one assault, thereby creating a danger to the people who worked in the school building. Id.
Relying on Kneipp, the district court had interpreted the relationship element to require an allegation that the state actor was aware of a danger to a specific individual, and had dismissed the plaintiff's complaint because the plaintiff made no such allegation. Id. at 912-13. Without reversing or even criticizing the district court's analysis, the Third Circuit announced a softer standard, stating that "it would not appear that the state-created danger theory of liability under § 1983 always requires knowledge that a specific individual has been placed in harm's way." Id. at 914. Noting that "there would appear to be no principled distinction between a discrete plaintiff and a discrete class of plaintiffs," the court concluded that "[t]he ultimate test is one of foreseeability." Id.
In the present case, plaintiffs' claim that Simon's murder of Officer Gonzalez was foreseeable to Largent and Martinez is based entirely on the assertion that Warlocks have a known propensity to commit violent acts against police officers. Even if this is true, which we must assume for purposes of this motion, it is not sufficient to support plaintiffs' claim that Simon's murder of Officer Gonzalez was foreseeable to Largent and Martinez. Plaintiffs do not allege that Simon himself had ever committed a violent act against a police officer, or even that Simon had ever threatened to do so. In claiming that Simon's murder of Officer Gonzalez was foreseeable simply because Simon was a Warlock and Officer Gonzalez was a police officer, plaintiffs paint with too broad a brush.
Moreover, plaintiffs have not alleged that Largent or Martinez had any contact or interaction with Officer Gonzalez or any other police officer from Monroe Township or Franklin Township such as would render Officer Gonzalez a victim, in a tort sense, of defendants' failure to inform the police officers that Simon had taken up residence in the nearby community of Williamstown. See Kneipp, 95 F.3d at 1209 n.22. Unlike in Kneipp, where the defendant police officer personally encountered the victim and sent her home alone and on foot in a visibly intoxicated state on a cold night, or even in Morse, where the defendant school district and day care association employed the victim as a teacher in the school building they left unlocked in the face of a specific danger posed by an intruder, neither Largent nor Martinez could be said to have "exerted sufficient control over [Officer Gonzalez] to meet the relationship requirement." Id. at 1209.
In this regard, it is important to note that the confrontation between Simon and Officer Gonzalez on May 6, 1995 was a random and haphazard one. Plaintiffs do not allege that Officer Gonzalez knew that Simon was a passenger in the car he pulled over that night, nor do plaintiffs allege that Simon intentionally precipitated the confrontation in order to murder a police officer. There is no allegation of prior contacts between Simon and any Franklin Township police officer, let alone any allegation that Largent or Martinez should have been aware of some articulated threat by Simon against these officers. Officer Gonzalez, most tragically, was simply in the wrong place at the wrong time; neither Largent nor Martinez had anything to do with it.
Plaintiffs' claim against Largent and Martinez resembles the claim at issue in Hodgson v. Mississippi Dept. of Corrections, 963 F. Supp. 776 (E.D. Wis. 1997), where the plaintiff sought to hold the defendant Mississippi agency and officials liable under the state- created danger theory for the murder of his daughter by a man on parole from a Mississippi prison. Relying on the Third Circuit's definition of the cause of action as set forth in Kneipp and Mark, the court held that the plaintiff could not recover under the state-created danger theory because "[h]is pleadings and affidavits show no prior relationship between the Mississippi Defendants and his daughter" and "[t]here is no allegation that the Defendants were aware that Monique Hodgson, as distinguished from the public at large, faced any special danger." Id. at 794. Here, plaintiffs' pleadings show no prior relationship between Largent or Martinez and Officer Gonzalez or any other police officer from Monroe Township or Franklin Township, and there is no allegation -- other than the assertion that Warlocks were known to commit violent acts against police officers -- that Officer Gonzalez or any other police officer from Monroe Township or Franklin Township, as distinguished from the public at large, faced any special danger from Simon.
This absence of any relationship between the employees of the PBP&P and Officer Gonzalez was one of the factors that recently led the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania to dismiss the Complaint these plaintiffs filed against the Pennsylvania Defendants this court dismissed from this case for lack of personal jurisdiction on June 29, 1998. Judge Joyner commented:
There is likewise not evidence that any relationship existed between plaintiffs and defendants which could give rise to a duty of care on defendants' part. As before, there are no averments that defendants had any contact with or even knew of plaintiffs' existence or that defendants exercised the requisite degree of control of the plaintiffs or plaintiffs' decedent to five rise to a relationship. There is also no evidence and there are no allegations upon which a jury could find that the plaintiffs were taken outside the realm of the general public with respect to the duties owed them by defendants or that the defendants' conduct measurably increased the risk of danger to these plaintiffs in particular. Accordingly, we conclude that the third, relationship factor is also not present in this case. Gonzalez v. Angelilli, Civil Action No. 98-3537, slip op. at 10 (E.D. Pa. March 10, 1999). Judge Joyner's analysis applies to Largent and Martinez as well as to their fellow officials at the PBP&P.
Judge Joyner also noted the similarity of this case to Martinez v. State of California, 444 U.S. 277 (1980), where the plaintiffs were the parents of a fifteen year old girl who was raped and murdered by a parolee five months after he was released from prison despite his history as a sex offender. In affirming the trial court's dismissal of a § 1983 action against the state parole board and others charged with responsibility for making the parole release decision, the Supreme Court observed:
Regardless of whether, as a matter of state tort law the parole board could be said either to have had a "duty" to avoid harm to the victim or to have proximately caused her death, we hold that taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. Her life was taken by the parolee five months after his release. He was in no sense an agent of the parole board. Further, the parole board was not aware of the appellants' decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at lease under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law. Martinez, 444 U.S. at 285. Martinez provides additional support for the conclusion that plaintiffs' claims against Largent and Martinez must be dismissed.
Accordingly, the court finds that plaintiffs have failed to state a claim upon which relief can be granted against Largent and Martinez under the state-created danger theory due to plaintiffs' failure to adequately allege the existence of a relationship between Largent or Martinez and Officer Gonzalez. The court grants the motion of Largent and Martinez to dismiss Count I of the Amended Complaint. *fn1
C. Plaintiffs' Failure to Train Claim
In Count VI, plaintiffs allege that Largent and Martinez were deliberately indifferent to Officer Gonzalez's constitutional rights in enforcing allegedly defective PBP&P policies, customs and procedures and failing to provide adequate training, in violation of 42 U.S.C. § 1983. (Id. at ¶¶ 129-132.)
The parties have not addressed this count in their briefs, but it appears that plaintiffs are attempting to impose supervisory liability under § 1983 upon Largent and Martinez. *fn2 It is settled law in the Third Circuit, however, that supervisory liability cannot be premised on mere failure to train or supervise subordinates, absent proof of direct participation in unconstitutional conduct by the supervisor. See Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990), cert. denied, 591 U.S. 1218 (1991). Here, plaintiffs have not alleged direct participation by Largent or Martinez in any unconstitutional conduct that proximately caused harm to Officer Gonzalez. As Judge Joyner noted in dismissing plaintiffs claims against the other Pennsylvania Defendants:
while we must accept as true that defendants had and exercised supervisory authority over Simon in permitting his early release and that Simon would not have been in a position to shoot Officer Gonzalez had he not been paroled, this sequence of events does not mean that Gonzalez was killed . . . as the direct result of Simon's parole. Gonzalez v. Angelilli, Civil Action No. 98-3537, slip op. at 11 (E.D. Pa. March 10, 1999).
Furthermore, plaintiffs' allegations of deliberate indifference on the part of Largent and Martinez are lacking in factual support. Again, as Judge Joyner observed with regard to the other Pennsylvania Defendants:
while the complaint is replete with allegations concerning Robert Simon's criminal history, psychopathic personality and violent proclivities, there is no evidence that these defendants knew of plaintiffs and plaintiffs' decedent, knew or somehow should have known that plaintiffs would come in contact with Simon or suffer injury at his hands, or that the policies and procedures which they allegedly promulgated would facilitate this contact and harm such that they could be said to have willfully disregarded or been deliberately indifferent to a known risk. (Id. at 9-10.)
Accordingly, the court finds that plaintiffs have failed to state a claim upon which relief can be granted for supervisory liability for failure to train against Largent and Martinez and grants the motion of Largent and Martinez to dismiss Count VI of the Amended Complaint.
D. Plaintiffs' Conspiracy Claim
In Count VII of the amended complaint, plaintiffs allege that Largent and Martinez participated in a conspiracy to violate Officer Gonzalez' civil rights, in violation of 42 U.S.C. § 1985 and state civil conspiracy law. (Amended Complaint at 133-34.)
Plaintiffs clearly have not stated a claim upon which relief can be granted against Largent and Martinez under 42 U.S.C. § 1985. Plaintiffs have not specified the subpart of § 1985 under which they have sued, but § 1985(3) is the only subpart that could possibly apply. It is well-settled, however, that § 1985(3) "does not provide a remedy for a conspiracy to deny the right to due process, as opposed to the right to equal protection under the law." Dunn v. New Jersey Transit Corp., 681 F. Supp. 246, 251 (D.N.J. 1987) (citing cases). To be actionable, a conspiracy under § 1985(3) must be alleged to be invidiously class-based, directed at a victim because of his membership in a protected class. Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971); Pitak v. Bell Atlantic Network Svcs., Inc., 928 F. Supp. 1354, 1368-69 (D.N.J. 1996). Thus, plaintiffs' reliance on § 1985(3) is misplaced because their underlying claims against Largent and Martinez under the state-created danger theory involve alleged violations of Officer Gonzalez's Fourteenth Amendment right to substantive due process, not equal protection. See Kneipp, 95 F.3d at 1204 (characterizing plaintiff's state-created danger claim as an alleged violation of her right to substantive due process guaranteed by the Fourteenth Amendment); Mark, 51 F.3d at 1141 (same).
Plaintiffs also have not stated a claim upon which relief can be granted against Largent and Martinez under state civil conspiracy law. The gist of a claim of civil conspiracy is not the conspiracy itself, "but the underlying wrong which, absent the conspiracy, would give a right of action." Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364-65 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Thus, plaintiffs' failure to adequately plead their underlying state-created danger and failure to train claims against Largent and Martinez is also fatal to their state law civil conspiracy claim.
Accordingly, the court finds that plaintiffs have failed to state a claim upon which relief can be granted against Largent and Martinez for conspiracy and grants the motion of Largent and Martinez to dismiss Count VII of the Amended Complaint.
For the foregoing reasons, the court grants the motion to dismiss filed by Largent and Martinez. The accompanying Order is entered.
THIS MATTER having come before the court on the motion of defendants Robert A Largent and Josephina Martinez to dismiss plaintiffs' complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), and the court having considered the moving papers and plaintiffs' opposition thereto, and for the reasons set forth in the accompanying Opinion;
IT IS on this 13th day of April, 1999 hereby ORDERED that defendants' motion to dismiss is GRANTED and that plaintiffs' claims against Largent and Martinez are hereby DISMISSED WITH PREJUDICE.
JEROME B. SIMANDLE U.S. District Judge