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Mihalick v. Simon

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


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 failing to properly supervise Simon after his release on parole, in violation of 42 U.S.C. § 1983. (Id. at 99-116.)

DISCUSSION

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 II of the Complaint, Mihalick and DeRenzo claim that Largent and Martinez contributed to a "state-created danger" actionable under 42 U.S.C. § 1983 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 failing to properly supervise Simon after his release on parole. (Complaint at ¶¶ 99-116). They claim that the local police damaged their property as a result of the "state-created danger."

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.

In the present case, the court finds that Mihalick and DiRenzo have failed to state a claim upon which relief can be granted against Largent and Martinez under the "state-created danger" theory because the harm to which they were subjected -- the alleged illegal search of their property and false imprisonment of their persons by New Jersey law enforcement authorities investigating Simon's murder of Officer Gonzalez -- was not a "foreseeable and fairly direct" result of defendants' participation in the decision to release Simon on parole and permit him to take up residence on plaintiffs' property in Williamstown, New Jersey. Simply put, plaintiffs can prove no set of facts that will establish a direct causal link between the actions of Largent and Martinez and the actions of the New Jersey law enforcement authorities who descended on plaintiffs' property after Simon murdered Officer Gonzalez. As Judge Joyner recently observed in dismissing plaintiffs' claims against other PBP&P officials in a similar action filed in the Eastern District of Pennsylvania after this court dismissed those defendants from this case for lack of personal jurisdiction:

"As far as the Mihalick plaintiffs are concerned, there are absolutely no averments which suggest that the destruction of their property by New Jersey law enforcement officers looking for evidence against Simon after the murder was the foreseeable result of defendants' approval of his release from prison. Thus, the foreseeability and directness requirements are not satisfied here." Gonzalez v. Angelilli, Civil Action No. 98-3537, slip op. at 9 (E.D. Pa. March 5, 1999).

In Morse v. Lower Merion School Dist., 132 F.3d 902, 908-910 (3d Cir. 1997), the Third Circuit affirmed the district court's dismissal of the plaintiff's "state-created danger" claim, making a plenary determination that the plaintiff's allegations of a causal link between the state action and the harm suffered by plaintiff's decedent was too attenuated to survive a Rule 12(b)(6) motion. 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. The Third Circuit held "that defendants, as a matter of law, could not have foreseen that allowing construction workers to use an unlocked back entrance for access to the school building would result in the murderous act of a mentally unstable third party, and that the tragic harm which ultimately befell [plaintiff's decedent] was too attenuated from defendants' actions to support liability." Id. at 908.

Here, there were two intervening illegal acts by third parties between defendants' approval of Simon's release on parole and the harm about which plaintiffs complain: (1) Simon's murder of Officer Gonzalez; and (2) the allegedly unreasonable search and seizure of plaintiffs' property and persons by New Jersey law enforcement officers investigating the murder. Even if a reasonable jury could find that it was foreseeable that the release of Simon could result in Simon's committing some serious crime, it is inconceivable that a reasonable jury could find that the alleged violation of plaintiffs' Fourth Amendment rights was a foreseeable and fairly direct result of defendants' conduct. In short, nobody in the shoes of defendants Largent and Martinez could have foreseen that their release of Simon on parole placed these plaintiffs directly into the zone of danger of improper police conduct by local law enforcement personnel. Thus, as in Morse, plaintiffs' theory of causation is too attenuated to support their theory of liability.

CONCLUSION

For these reasons, 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 and grants defendants' motion to dismiss Count II of the Complaint. *fn1 The accompanying Order is entered.

JEROME B. SIMANDLE U.S. District Judge

Dated: May , 1999

ORDER

THIS MATTER having come before the court on the motion of defendants Robert A Largent and Josephina Martinez to dismiss Count II of 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 day of May, 1999 hereby ORDERED that defendants' motion to dismiss is GRANTED and that Count II of plaintiffs' Complaint is DISMISSED WITH PREJUDICE.

JEROME B. SIMANDLE U.S. District Judge


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