Essington v. Monroe County Transit Authority

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SEAN ESSINGTON, Administrator

of the Estate of DAVID

ESSINGTON, deceased,

Plaintiff, CIVIL ACTION NO. 3:19-cv-01878

v. (SAPORITO, M.J.)

MONROE COUNTY TRANSIT

AUTHORITY, et al.,

Defendants.

MEMORANDUM

This is a federal civil rights action, brought by the plaintiff

pursuant to 42 U.S.C. § 1983. In addition to a § 1983 claim against

defendant Monroe County Transit Authority (“(MCTA”), the plaintiff has

brought related state-law claims against MCTA and other defendants,

pursuant to 28 U.S.C. § 1367.

Two of the defendants have moved for dismissal pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure: MCTA and A Pocono

Country Place Property Owners Association, Inc. (the “POA”). (Doc. 15;

Doc. 16.) Both motions are fully briefed and ripe for decision. (Doc. 22:

Doe. 34; Doc. 35; Doc. 39.)

I. BACKGROUND

At the time of his death on October 30, 2017, the decedent, David

Essington (“David”), was 17 years old. He had resided with his father,

Sean Essington, within a gated planned community known as “A Pocono

Country Place,” located in Coolbaugh Township, Monroe County,

Pennsylvania.

On the evening of October 30, 2017, David was a passenger on Bus

No. 1306, a public transit bus operated by MCTA. The bus was traveling

northbound on MCTA’s “Silver Route,” along Pennsylvania State Route

196 (“PA-196”), also known as Sterling Road.! PA-196 is a highly

traveled, heavily wooded, curving mountainous roadway consisting of one

lane of travel in each direction with a speed limit of 45 miles per hour.?

At approximately 8:28 p.m., the bus arrived at a scheduled bus stop,

known as “A Pocono Country Place, Woodside Drive,” which was located

at the intersection of PA-196 and Woodside Drive. This bus stop provided

1 MCTA buses on the Silver Route provide public transit bus service

between Kalahari Resorts Poconos, where David worked, and A Pocono

Country Place, where he resided.

2 The complaint characterizes this stretch of PA-196 as “one of the

most dangerous roadways in Pennsylvania, having had seven (7) motor

vehicle fatalities occurring between 2015 and 2017.” (Doe. 1 § 38.)

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service exclusively to passengers wishing to disembark to enter the gated

community, A Pocono Country Place, which was located on the western

side of PA-196. The gate at Woodside Drive permitted pedestrian access

only—no vehicular traffic into or out of the community was permitted at

this location. The bus stop was located on the eastern side of PA-196, such

that passengers disembarking there were required to exit the bus onto

the eastern side of the roadway and cross both the northbound and

southbound lanes of PA-196 to access the gated community. There were

no structures, roadways, driveways, or other improvements on the

eastern side of PA-196 near the Woodside Drive bus stop.

Using the bus’s rear exit, David disembarked Bus No. 1306 onto the

shoulder of the northbound lane of PA-196. David then proceeded to cross

the northbound lane of PA-196 and into the southbound lane, where he

was struck by a vehicle owned and operated by a third-party defendant,

Joaquin Acevedo-Soltren, which was traveling south on PA-196. The

complaint alleges, upon information and belief, that Acevedo-Soltren was

unable to see David before striking him because the position of the bus

and its headlights were obstructing his view. David died as a result of

injuries sustained in the collision.

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II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiffs claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

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documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (8d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588-89 (W.D. Pa. 2008).

III. DiIscussION

A. Section 1983 Claim Against MCTA

In his primary claim, upon which federal jurisdiction over this case

rests, the plaintiff claims that MCTA’s official acts and policies violated

his right to substantial due process under the Fourteenth Amendment to

the United States Constitution, made actionable by 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress...

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983

claim, a plaintiff must establish that the defendants, acting under color

of state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

358 (3d Cir. 2005).

Here, the plaintiffs Fourteenth Amendment claim relies on a state-

created danger theory of liability. “While states generally do not have an

obligation to protect citizens, under the state-created danger doctrine, a

public actor may be liable for harm a citizen suffers if ‘the state acts to

create or enhance a danger that deprives the plaintiff of his’ due process

rights.” K.W. ex rel. White v. Se. Pa. Transp. Auth., 760 Fed. App’x 104,

107 (8d Cir. 2019) (quoting Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.

2006)). The state-created danger doctrine “embodies the principle that

the government has an obligation under the Fourteenth Amendment’s

Due Process Clause ‘to protect individuals against dangers that the

government itself creates.” Sauers v. Borough of Nesquehoning, 905 F.3d

711, 717 (3d Cir. 2018) (quoting Haberle v. Troxell, 885 F.3d 170, 176 (3d

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Cir. 2018)).

To plead a state-created danger claim, the plaintiff must plausibly

allege:

(1) the harm ultimately caused was foreseeable and

fairly direct;

(2) a state actor acted with a degree of culpability that

shocks the conscience;

(3) a relationship between the state and the plaintiff

existed such that the plaintiff was a foreseeable victim

of the defendant’s acts, or a member of a discrete class

of persons subjected to the potential harm brought about

by the state’s actions, as opposed to a member of the

public in general; and

(4) a state actor affirmatively used his or her authority

in a way that created a danger to the citizen or that

rendered the citizen more vulnerable to danger than had

the state not acted at all.

Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006) (quoting Bright v.

Westmoreland Cty., 443 F.3d 276, 281 (8d Cir. 2006). All four elements

must be satisfied. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d

Cir. 2008) (stating that a plaintiffs failure to adequately plead the fourth

3 Although we do not reach this element, we note that “[t]he level of

culpability required to shock the conscience increases as the time state

actors have to deliberate decreases. ... [I]n cases where deliberation is

possible and officials have the time to make ‘unhurried judgments,

deliberate indifference is sufficient.” Sanford, 456 F.3d at 309.

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element “obviates the need to analyze the other three elements’);

Sanford, 456 F.3d at 311 (noting that the plaintiffs “claim can go no

further” because she failed to adequately plead the second element).

Here, the third and fourth elements are dispositive of the plaintiffs

§ 1983 claim against MCTA.

With respect to the third element, the relationship requirement, the

plaintiff alleges that he was a member of the discrete class of “passengers

of the northbound Silver Route of the defendant, Monroe County Transit

Authority, disembarking at the bus stop known as A Pocono Country

Place, Woodside Drive.” (Doc. 1 § 60.) But “a plaintiff is not part of a

discrete class if the risk applies to thousands, or even hundreds of people

and the risk exists for an ‘indefinite’ duration of time.” Crockett v. Se. Pa.

Transp. Ass’n, Civil Action No. 12-4230, 2013 WL 2983117, at *6 (E.D.

Pa. June 14, 2013); see also Morse v. Lower Merion Sch. Dist., 132 F.3d

902, 913 n.12 (3d Cir. 1997) (“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.”); Jones v. Reynolds, 438 F.3d 685,

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697 (6th Cir. 2006) (“When . . . the victim was not identifiable at the time

of the alleged state action/inaction, ...a § 1983 suit may not be brought

under the ‘state created danger’ theory.”). Thus, other courts considering

state-created danger claims have concluded that public transit

passengers do not constitute a “discrete class” of potential plaintiffs

under the state-created danger doctrine. See Crockett, 2013 WL 2983117,

at *6-*7; Martinez v. Se. Pa. Transp. Auth., Civil Action No. 08-5021,

2009 WL 5101824, at *5 (E.D. Pa. Dec. 15, 2009). We agree. The risk faced

by David, which resulted in his unfortunate death on the evening of

October 30, 2017, was the same risk faced by countless other passengers

on the MCTA Silver Route as they disembarked at this and other bus

stops over the course of years since service commenced along that route.

With respect to the fourth element, the affirmative act requirement,

the plaintiff alleges that MCTA acted affirmatively when it “planned,

designed, scheduled or otherwise designated the bus stop known as [‘A

Pocono Country Place, Woodside Drive’] in such a manner so that

passengers disembarking from the northbound Silver Route were

required to exit the bus onto the eastern side of the roadway of [PA-196]

and then proceed to cross both the northbound and southbound lanes to

access” the gated community, A Pocono Country Place.4 (Doc. 39, at 13;

see also Doc. 1 § 62.) But “a plaintiff cannot satisfy the fourth prong of

the state-created danger [doctrine] by recasting as affirmative acts

omissions or ‘passive conduct’ not specifically directed at the plaintiff.”

Estate of Viola v. Twp. of Bensalem, 96 F. Supp. 3d 466, 471 (K.D. Pa.

2015).

The fourth of these conjunctive elements reflects the fact

that the substantive component of the Due Process

Clause is phrased as a limitation on the State’s power to

act, not as a guarantee of certain minimal levels of

safety and security. It forbids the State itself to deprive

individuals of life, liberty, or property without due

process of law. A specific and deliberate exercise of state

authority is not sufficient. Rather, there must be a direct

causal relationship between the affirmative act of the

state and plaintiffs harm. Only then will the affirmative

act render the plaintiff more vulnerable to danger than

had the state not acted at all.

White, 760 Fed. App’x at 107 (citations, internal quotation marks, and

alterations omitted).

Here, MCTA’s decision to place a bus stop on the eastern side of PA-

196, across the road from the Woodside Drive gate, as opposed to some

4 We note that the plaintiff does not allege any other affirmative act

occurring on or closer in time to the date of the decedent’s death. See, e.g.,

White, 760 Fed. App’x at 108—09 (rejecting argument that placement of

bus into service on the day of accident was an affirmative act).

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other location, was not an affirmative act specifically directed at the

decedent. See Viola, 96 F. Supp. 3d at 471. A decision regarding the

particular location or configuration of the Woodside Drive bus stop

cannot be said to have affirmatively placed David in danger or increased

danger. The danger he faced was crossing a busy roadway at night. See

id. Nor is it alleged that MCTA required that David take the bus rather

than commute to and from work by some other means. See id.®

5 In support of his argument that MCTA acted affirmatively, the

plaintiff cites two different cases involving the sexual abuse of minors by

foster parents. See K.S.S. v. Montgomery Cty. Bd. of Comms, 871 F.

Supp. 2d 389, 402-03 (E.D. Pa. 2012) (placement of child in foster care of

known pedophile was an affirmative act); D.N. ex rel. Nelson v. Snyder,

608 F. Supp. 2d 615, 627 (M.D. Pa. 2009) (active concealment of former

municipal employee’s possession of child pornography on municipal

computer, despite knowing he was an aspiring foster parent, was an

affirmative act). We find these cases entirely inapposite to the facts of

this case.

The plaintiff has also cited the Third Circuit’s decision in Morse,

but we find that case supports our decision. As in Morse, here there is no

direct causal connection between the alleged acts or omissions of MCTA

and the harm which befell the decedent. MCTA’s decision to place the

Woodside Drive bus stop for the northbound Silver Route on the eastern

side of the roadway, across the road from the community it served, did

not directly place the decedent in harm’s way. See Morse, 132 F.3d at 915.

The decision by MCTA to locate the bus stop on the eastern side of the

roadway did not place David in “a dangerous environment stripped of

means to defend [himself] and cut off from sources of aid.” Jd. (quoting

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994)). Nor

does the plaintiff allege that MCTA placed David in a “unique

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(CE s

Accordingly, we will grant MCTA’s motion to dismiss with respect

to the § 1983 claim. The plaintiff's § 1983 claim against MCTA will be

dismissed for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

B. Supplemental State-Law Claims

Upon dismissal of the plaintiffs § 1983 claim against MCTA, only

his state-law claims against MCTA and the other defendants will remain.

Where a district court has dismissed all claims over which it had original

jurisdiction, the Court may decline to exercise supplemental jurisdiction

over state law claims. 28 U.S.C. § 1867(c)(3). Whether the Court will

exercise supplemental jurisdiction is within its discretion. Kach v. Hose,

589 F.3d 626, 650 (3d Cir. 2009). That decision should be based on “the

values of judicial economy, convenience, fairness, and comity.” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 348, 350 (1988). Ordinarily, when all

federal law claims have been dismissed and only state-law claims remain,

confrontational encounter” with Acevedo-Soltren, driver of the car that

struck him. Jd. (quoting Cornelius v. Town of Highland Lake, 880 F.2d

348, 359 (11th Cir. 1989)). See generally Brown v. Grabowski, 922 F.2d

1097, 1100-01 (3d Cir. 1990) (“[A] state’s failure to take affirmative

action to protect a victim from the actions of a third person will not, in

the absence of a custodial relationship between the state and the victim,

support a civil rights claim.”).

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the balance of these factors indicates that these remaining claims

properly belong in state court. Cohill, 484 U.S. at 850. Finding nothing

in the record to distinguish this case from the ordinary one, the balance

of factors in this case “point[s] toward declining to exercise jurisdiction

over the remaining state law claims.” See Cohill, 484 U.S. at 350 n.7.

Accordingly, the plaintiff's state-law claims will be dismissed without

prejudice pursuant to 28 U.S.C. § 1367(c)(3).

C. Leave to Amend

The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(8d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). It is not clear that amendment would be futile, nor is there any

basis to believe it would be inequitable. Therefore, the plaintiff will be

granted leave to file an amended complaint within twenty-one days

following dismissal of the original complaint.

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IV. CONCLUSION

For the reasons set forth above, the motion to dismiss by MCTA

(Doc. 16) will be granted in part and denied in part as moot. It will be

granted with respect to the plaintiffs § 1983 claim, which will be

dismissed for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The

plaintiffs state-law claims will be dismissed without prejudice pursuant

to 28 U.S.C. § 1367(c)(3). As a result, the POA’s motion to dismiss (Doc.

15) and the remainder of MCTA’s motion to dismiss (Doc. 16) will be

denied as moot.

The plaintiff may file an amended complaint within twenty-one

days after dismissal of the original complaint. Failure to timely file an

amended complaint will result in dismissal of the § 1983 claim with

prejudice.

Dated: September // , 2020 J □

Zoenrn F. ne a

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SEAN ESSINGTON, Administrator

of the Estate of DAVID

ESSINGTON, deceased,

Plaintiff, CIVIL ACTION NO. 3:19-cv-01878

Vv. (SAPORITO, M.J.)

MONROE COUNTY TRANSIT

AUTHORITY, et al.,

Defendants.

ORDER

AND NOW, this day of September, 2020, in accordance

with the accompanying Memorandum, IT IS HEREBY ORDERED

THAT:

1. Defendant Monroe County Transit Authority’s Motion to

Dismiss Pursuant to F.R.C.P. 12(b)(6) (Doc. 16) is GRANTED in part

and DENIED in part as moot;

2. The Rule 12(b)(6) Motion to Dismiss of the Defendant, A

Pocono Country Place Property Owners Association, Inc. (Doc. 15) is

DENIED as moot;

3. The plaintiffs § 1983 claim, set forth in Count I of the

complaint (Doc. 1), is DISMISSED for failure to state a claim upon which

relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure;

4. The plaintiff's state-law claims, set forth in Counts I] through

VII of the complaint (Doc. 1), are DISMISSED without prejudice

pursuant to 28 U.S.C. § 13867(c)(8);

5. The plaintiff may file an amended complaint within twenty-

one (21) days after the date of this Order; and

6. If an amended complaint is not timely filed, dismissal of the

§ 1983 claim (Count I) shall be with prejudice and the Clerk shall mark

this case as CLOSED.

SEPH F.S ITO, dR:

United States Magistrate Judge

2.