# Essington v. Monroe County Transit Authority

> District Court, M.D. Pennsylvania · September 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10409224

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409224

## How later opinions describe it (automated extraction)

- noting that the plaintiffs “claim can go no further” because she failed to adequately plead the second element

## Opinion text

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.)
oe

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.

sfx

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,

4 Bi

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
(continued on next page)

(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.”).

3 Tis

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409224. Public record. Not legal advice.