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Mihalick v. Simon

May 14, 1999

MARIANNE MIHALICK AND CHRISTINE MIHALICK DERENZO,
PLAINTIFFS,
V.
ROBERT SIMON, A/K/A MUDMAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION

This matter is before the court on the motion of defendants Robert A. Largent and Josephina Martinez to dismiss Count II plaintiffs' 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 arising out of their participation in the decision to release convicted murderer Robert "Mudman" Simon from a Pennsylvania prison and to permit him to take up residence in plaintiffs' trailer park in Williamstown, New Jersey, where he was living when he shot and killed Franklin Township Police Officer Ippolito "Lee" Gonzalez, on May 6, 1995. 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 defendants' motion to dismiss.

BACKGROUND

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 and the subsequent investigation of that crime by New Jersey law enforcement officials, including the search of plaintiffs' trailer park in Williamstown, New Jersey, where the assailant lived.

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. (Complaint at ¶¶ 78-79.) 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 ¶¶ 27, 35, 46, 48, 50.) Simon has since been convicted of the murder of Officer Gonzalez. (Id. at ¶ 79.)

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 ¶¶ 35, 37-38, 40, 44, 48.) 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 ¶¶ 45-46.) 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 ¶¶ 49.) 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 ¶¶ 62-66.)

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 ¶ 24.) 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).

Plaintiff Marianne Mihalick is the owner of the trailer park in Williamstown, New Jersey, where Simon took up residence upon his release on parole in February 1995. (Complaint at ¶ 59.) Plaintiff Christine Mihalick DeRenzo is Marianne Mihalick's adult daughter. (Id. at ¶ 9.) Both Mihalick and DeRenzo reside in a house adjacent to the trailer park at 3944 South Black Horse Pike in Williamstown. (Id. at ¶¶ 8-9.) In addition to the trailer park and the Mihalick residence, a barn, bath house and water tanks occupy the 27 acre parcel of land Mihalick owns. (Id. at ¶ 60.) Mihalick uses the property as a campground, horse stable and residence, deriving all of her income from renting campground space for trailers and giving horseback riding lessons at the stable. (Id. at ¶ 61.)

In April and again in August of 1994, Staples approached Mihalick to inquire about the availability of a trailer on her property, but no trailers were available for rent at those times. (Id. at ¶ 62.) Staples approached Mihalick again in October 1998 and succeeded in acquiring a trailer. (Id. at ¶ 63.) Staples was to pay rent to Mihalick for the site on which the trailer was located. (Id. at ¶ 64.)

In November 1994, Staples advised Mihalick that a friend of his who had served twenty years in prison on a drug conviction but was by then an old man who liked gardening was about to be released from prison and would be taking up residence in the trailer on her property. (Id. at ¶ 65.) Staples did not advise Mihalick of the true nature of Simon's criminal history or of his association with the Warlocks. (Id. at ¶ 66.) Mihalick also was contacted by a parole officer from the New Jersey Department of Corrections and by the PBP&P to confirm the living arrangements Staples had made for Simon, but neither the New Jersey parole officer or the PBP&P ever advised Mihalick of the true nature of Simon's criminal history or of his association with the Warlocks. (Id. at ¶¶ 67-68, 70-74.) Mihalick alleges that she would not have consented to Simon's taking up residence on her property had she known the true nature of Simon's criminal history or of his association with the Warlocks. (Id. at ¶ 69.)

Simon moved into the trailer on Mihalick's property immediately after his release from prison on February 18, 1995. (Id. at ¶ 75.) On May 6, 1995, Simon shot and killed Officer Gonzalez during a routine traffic stop in Franklin Township. (Id. at ¶ 78.) At about 4:00 a.m. the following morning, while Mihalick and DeRenzo were preparing to attend a horse show, police officers from Monroe Township, Franklin Township and the Gloucester County Special Incident Team descended on Mihalick's trailer park and asked for directions to Simon's trailer. (Id. at ¶ 80.) Mihalick advised the officers that Simon was not at home. (Id. at ¶ 81.) The officers did not tell Mihalick why they were looking for Simon. (Id. at ¶ 82.) Mihalick telephoned a friend, who informed her that Simon had been shot and was hospitalized. (Id. at ¶ 82.)

Mihalick and DeRenzo left to attend the horse show, but returned later that day to discover police officers destroying her bath house, horse stable and Simon's trailer. When they approached the police to ask them what they were doing, they were told to say out of the area because it was a crime scene. (Id. at ¶ 84.) Mihalick and DeRenzo then entered their residence and discovered that it had been searched. (Id. at ¶ 85.) The police did not have a warrant to search plaintiffs' home. (Id. at ¶ 86.) The police harassed and falsely imprisoned Mihalick, DeRenzo and other residents of the trailer park in a trailer at the campground from May 7 to May 8, 1995, and accused Mihalick and DeRenzo of assisting Simon in committing the murder of Officer Gonzalez and of withholding evidence from their investigation. (Id. at ¶¶ 87-88.) As a result, Mihalick and DeRenzo claim that they have been falsely associated with the Warlocks, causing economic injury and damage to their reputations. (Id. at ¶¶ 90-91.)

Mihalick and DeRenzo commenced this action by filing a Complaint on May 5, 1997. In Count II of the Complaint, Mihalick and DeRenzo allege that Largent and Martinez contributed to a "state-created danger" to them and their property by approving Simon's release on parole and allowing him to take up residence on their property in Williamstown without advising them of the true nature of Simon's criminal history or of his association with the Warlocks and by ...


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