Bright v. Westmoreland County

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

4-4-2006

Bright v. Westmoreland

Precedential or Non-Precedential: Precedential

Docket No. 05-2005

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PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS

FOR THE THIRD CIRCUIT

NO. 05-2005

JOHN BRIGHT, Individually and in his capacity as

Administrator of the ESTATE OF ANNETTE BRIGHT,

deceased,

Appellant

v.

WESTMORELAND COUNTY; TAMI WHALEN,

Individually and in her capacity as a

Probation Officer for Westmoreland County; RICHARD

YESKO, Individually and in his capacity as a Probation

Officer for Westmoreland County; ANTHONY C. GUINTA,

Individually and in his capacity as Probation Supervisor for

Westmoreland County; CITY OF MONESSEN; CARL

FRANZAGLIO, Individually and in his capacity as a Police

Officer for the City of Monessen; PAUL S. KUNTZ,

Individually and in his capacity as Court Administrator for the

Westmoreland County Court of Common Pleas; JOHN

PECK, Individually and in his capacity as District Attorney of

Westmoreland County; CHARLES KOSCHALK

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civil Action No. 03-cv-01072)

District Judge: Hon. Arthur J. Schwab

Argued October 19, 2005

BEFORE: SMITH, STAPLETON and NYGAARD,

Circuit Judges

(Opinion Filed April 4, 2006)

Peter M. Suwak (Argued)

P.O. Box 1

Pete’s Surplus Building

Washington, PA 15301

Attorney for Appellant

Thomas P. Pellis (Argued)

Meyer, Darragh, Buckler, Bebenek & Eck

114 South Main Street

Greensburg, PA 15601

Attorney for Appellees Westmoreland

County, Tami Whalen, Richard Yesko,

Anthony C. Guinta and John Peck

2

Thomas P. McGinnis (Argued)

Thomas, Thomas & Hafer

301 Grant Street

One Oxford Centre - Suite 1150

Pittsburgh, PA 15219

Attorney for Appellees City Of Monessen,

and Carl Franzaglio

Mary E. Butler (Argued)

Supreme Court of Pennsylvania

Administrative Office of PA Courts

1515 Market Street - Suite 1414

Philadelphia, PA 19102

Attorney for Appellee

Paul S. Kuntz

OPINION OF THE COURT

STAPLETON, Circuit Judge:

John Bright, on behalf of himself and his daughter

Annette’s estate, appeals from an order dismissing his

complaint for failure to state a claim. That complaint purports

to allege a Substantive Due Process claim under the “state-

created danger doctrine” and several state law claims. For

present purposes, we accept the facts alleged in Bright’s

3

complaint as true. Based on those facts, we will affirm the

judgment of the District Court.

I.

Thirty-four-year-old defendant Charles Koschalk

(“Koschalk”) pled guilty to a charge of corrupting the morals

of a twelve-year-old girl, Annette Bright’s sister. He was

sentenced to 23 months of probation. As conditions of his

probation, he was to have no contact with his 12-year-old

victim and no unsupervised contact with any other minor. On

probation, Koschalk was under the supervision of

Westmoreland County Adult Probation Department and three

of its employees – defendants Tami Whalen, Richard Yesko,

and Anthony Guinta. During his probation, Koschalk

continuously violated his parole by attempting to carry on a

relationship with the 12-year-old victim of his crime.

The complaint alleges the following with respect to

one of those probation violations and the ensuing

proceedings:

16. On or about MAY 4, 2001, AT

20:09 hrs, Defendant Probation Officer Tami

Whelan personally observed and confronted

Defendant Koschalk with the twelve year old

victim, unsupervised, at the Target Store in

Greensburg. The probation officer considered

this a direct violation of the Court Order.

17. Defendant Probation Officer Whelan

4

prepared a report in support of a violation

petition on or about May 16, 2001.

18. On or about June 15, 2001, a formal

violation document alleging the above

unauthorized contact was signed by Probation

Officer Richard Yesko for Probation Officer

Whelan.

19. On or about June 18, 2001,

Probation Supervisor Anthony C. Guinta signed

the violation document requesting that a final

revocation hearing be scheduled for Defendant

Koschalk.

20. On or about June 27, 2001, a Petition

to Revoke Defendant Koschalk’s probation was

filed through Defendant District Attorney’s

office by and through an assistant district

attorney.

21. On or about August 6, 2001, the

Westmoreland County Court Administrator’s

Office issued a notice that a hearing on the

Petition for Revocation was scheduled for

August 28, 2001 before the Honorable William

J. Ober of the Court of Common Pleas of

Westmoreland County.

First Amended Complaint, App. at 54a-55a.

5

In late June, 2001, Bright called defendant Officer Carl

Franzaglio of the City of Monessen Police Department to ask

him to arrest Koschalk. Officer Franzaglio had some

familiarity with the case because he was the prosecuting

officer in the proceeding against Koschalk stemming from his

crime against the 12-year-old. After Bright described the

situation, Officer Franzaglio assured Bright that immediate

action would be taken, but no detention of Koschalk occurred.

On July 15, 2001, before his probation revocation

hearing was scheduled, Koschalk shot and killed Annette

Bright, the eight-year-old sister of the victim of his earlier

crime. Koschalk murdered Annette Bright to retaliate against

the family for its efforts to prevent him from seeing the 12-

year-old victim.

Bright’s complaint concludes its statement of a claim

under 42 U.S.C. § 1983 with the following allegations:

The aforementioned acts, coupled with the

inexplicable delay of nearly ten weeks in

processing the revocation petition and/or the

failure to initiate arrest and/or detention in the

face of known probation violations . . .

constituted a state-created danger . . . . The

homicide was directly and proximately caused

by the affirmative acts and/or the deliberate

indifference and/or failure to enforce, despite

actual knowledge, the court-ordered conditions

of probation. Further, the effect of direct

6

confrontation with Koschalk, coupled with the

aforementioned inexplicable delay emboldened

Koschalk into believing that he would not

confront effective law enforcement action as he

progressed with his scheme to retaliate against

the Bright family.

First Amended Complaint at ¶¶ 30(h), 31, App. at 58a.

In addition to the violation of Annette Bright’s federal

civil rights, Bright’s complaint also alleges state law wrongful

death and survival claims against all of the defendants and

assault and battery claims against Koschalk.

The District Court granted the defendant’s Rule

12(b)(6) motion to dismiss the § 1983 state-created danger

claims. It concluded that these claims “must fail . . . because

the state actors did not use their authority to create an

opportunity for harm that would not otherwise have existed.”

District Ct. Op., App. at 13a-14a. The District Court also

dismissed Bright’s state law claims against the state-actor

defendants on the ground that they were entitled to immunity

under the Pennsylvania Political Subdivision Tort Claims Act,

42 Pa. Cons. Stat. § 8541, et seq. (“PPSTCA”). Finally, the

District Court declined to exercise supplemental jurisdiction

over the state law claims against Koschalk. This timely

appeal followed.

II.

We begin our evaluation of Bright’s “state-created

7

danger” claim with a review of the Supreme Court’s decision

in DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S.

189 (1989). Joshua DeShaney was physically abused by his

father. The respondents, social workers and local officials,

had ample reason to believe Joshua’s father was abusing him

and, at one point, secured temporary custody of Joshua. They

ultimately returned Joshua to his father, however, and the

violence continued, resulting in severe brain damage. Joshua

and his mother “sued respondents claiming that their failure to

act deprived [Joshua] of his liberty in violation of the Due

Process Clause of the Fourteenth Amendment.” Id. at 191.

The Supreme Court held that it did not, and affirmed a

summary judgment for the respondents.

Based upon its text, history, and case law, the Court

concluded that the Due Process Clause did not impose an

affirmative obligation on the state to protect its citizens:

The 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,” but its language cannot fairly be extended

to impose an affirmative obligation on the State

to ensure that those interests do not come to

harm through other means. Nor does history

support such an expansive reading of the

constitutional text.

***

8

Its purpose was to protect the people from the

State, not to ensure that the State protected them

from each other.

***

Consistent with these principles, our

cases have recognized that the Due Process

Clauses generally confer no affirmative right to

governmental aid, even where such aid may be

necessary to secure life, liberty, or property

interests of which the government itself may not

deprive the individual.

DeShaney, 489 U.S. at 195-96.

Significantly for present purposes, the petitioners in

DeShaney contended that, even if there was no affirmative

duty to protect the public generally, “a special relationship”

existed between Joshua and the state giving rise to such a duty

“because the State knew that Joshua faced a special danger of

abuse at his father’s hands, and specifically proclaimed, by

word and by deed, its intention to protect him against that

danger.” DeShaney, 489 U.S. at 197. The Supreme Court

expressly “reject[ed] this argument.” Id. at 198. It held that it

is only when the state takes custody of a citizen, thereby

depriving him of his liberty, that it assumes an affirmative

duty to protect him or her from harm.

[Our cases] stand only for the proposition that

when the State takes a person into its custody

9

and holds him there against his will, the

Constitution imposes upon it a corresponding

duty to assume some responsibility for his

safety and general well-being. . . . The

affirmative duty to protect arises not from the

State’s knowledge of the individual’s

predicament or from its expressions of intent to

help him, but from the limitation which it has

imposed on his freedom to act on his own

behalf.

Id. at 199-200.

Applying these principles to Joshua’s case, the Court

concluded that the state had no duty to protect him even

though state actors had, at one point, taken temporary custody

of Joshua and then returned him to his father:

Petitioners concede that the harms Joshua

suffered occurred not while he was in the

State’s custody, but while he was in the custody

of his natural father, who was in no sense a state

actor. While the State may have been aware of

the dangers that Joshua faced in the free world,

it played no part in their creation, nor did it do

anything to render him any more vulnerable to

them. That the State once took temporary

custody of Joshua does not alter the analysis, for

when it returned him to his father’s custody, it

placed him in no worse position than that in

which he would have been had it not acted at

10

all; the State does not become the permanent

guarantor of an individual’s safety by having

once offered him shelter.

DeShaney, 498 U.S. at 201 (footnote omitted).

DeShaney stands for the proposition that the Due

Process Clause imposes no affirmative duty to protect a

citizen who is not in state custody.1 As the last quoted

paragraph suggests, however, this does not mean that no

constitutional violation can occur when state authority is

affirmatively employed in a manner that injures a citizen or

renders him “more vulnerable to injury from another source

than he or she would have been in the absence of state

intervention.” Scheiber v. City of Philadelphia, 320 F.3d 409,

416 (3d Cir. 2003). This complement to the DeShaney

holding has come to be known in its progeny as the “state-

created danger doctrine.”

Our case law establishes the following essential

elements of a meritorious “state-created danger” claim:

(1) “the harm ultimately caused was foreseeable

and fairly direct;”2

1

Bright does not invoke the “state custody” exception to the

general rule of DeShaney. Compare Nicini v. Morra, 212 F.3d

798 (3d Cir. 2000) (holding that an affirmative duty to protect

may exist in the context of foster care).

2

Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996).

11

(2) a state actor acted with a degree of

culpability that shocks the conscience;3

(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;4 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.5

3

County of Sacramento v. Lewis, 523 U.S. 833 (1998);

Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (1999);

Scheiber v. City of Philadelphia, 320 F.3d 409, 416 (2003).

4

Kneipp, 95 F.3d at 1209, n.22; Morse v. Lower Merion Sch.

Dist., 132 F.3d 902, 906, 913 (3d Cir. 1997).

5

See DeShaney, 489 U.S. at 201 (“While the State may have

been aware of the dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do anything to render

him any more vulnerable to them. . . . [The State] placed him in

no worse position than that in which he would have been had it

not acted at all”); Rivas v. City of Passaic, 365 F.3d 181, 195

(3d Cir. 2004) (articulating the fourth element as requiring that

12

It is important to stress, for present purposes, that

under the fourth element of a state-created danger claim,

“[l]iability under the state-created danger theory is predicated

upon the states’ affirmative acts which work to the plaintiffs’

detriments in terms of exposure to danger.” D.R. by L.R. v.

Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1374

(3d Cir. 1992) (en banc) (emphasis supplied); Brown v.

Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. 1990) (finding

that DeShaney holds “that a state’s failure to take affirmative

action to protect a victim from the actions of a third party will

not, in the absence of a custodial relationship . . . support a

civil rights claim”). It is misuse of state authority, rather than

a failure to use it, that can violate the Due Process Clause.

While we have acknowledged that the line between

action and inaction may not always be clear, D.R., 972 F.2d at

1374, we have never found a state-created danger claim to be

meritorious without an allegation and subsequent showing

“the state actor used his authority to create an opportunity for

danger that otherwise would not have existed”). See also Laura

Oren, Safari into the Snake Pit: The State Created Danger

Doctrine, 13 Wm. & Mary Bill Rts. J. 1165, 1187 (2005)

(arguing that this element in our Circuit’s state-created danger

doctrine “may be broken down into its constituent parts: (1) Did

state officials exercise authority or power; (2) in such a way that

they put someone in a worse position than they would otherwise

have occupied?”).

13

that state authority was affirmatively exercised.6 Contrary to

Bright’s suggestion, Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.

6

If there were any inconsistency in the holdings of our prior

cases regarding the fourth element of a state-created danger

claim, the controlling precedent would be our en banc decision

in D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d

1364 (3d Cir. 1992). While acknowledging that the line

between action and inaction is sometimes difficult to draw, we

there affirmed what DeShaney clearly teaches: the Due Process

Clause proscribes only state action and, accordingly, liability

“under the state-created danger theory [can only] be predicated

upon the state’s affirmative acts which work to plaintiffs’

detriment in terms of exposure to danger.” 972 F.2d at 1374.

We perceive no conflict, however, between D.R. and those cases

which phrase the fourth element in terms of whether “state

actors used their authority to create an opportunity that would

not otherwise have existed” for injury to the plaintiff. Mark v.

Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). In our

view, “state actors” cannot “use their authority” to create such

an opportunity by failing to act. Rivas is not to the contrary.

There, two state actors, emergency medical technicians,

affirmatively used their state authority to create an opportunity

for injury to the plaintiff by summoning the police and

providing them with information that could be expected to cause

the police to treat the plaintiff’s decedent in a highly dangerous

manner – i.e., “Garcia and Rodriguez informed the police that

Mr. Rivas had assaulted one of them but did not inform the

police about Mr. Rivas’s medical condition or warn the officers

that Mr. Rivas should not be restrained.” 365 F.3d at 195. We

perceive little similarity between that case and this.

14

1996), and Morse v. Lower Merion Sch. Dist., 132 F.3d 902

(3d Cir 1997), do not indicate otherwise. In Kneipp, the

police stopped a couple on the street in the middle of the night

for causing a disturbance. The wife was intoxicated to the

point of being unable to walk without assistance. While the

police initially detained both of them, they subsequently gave

the husband permission to go home. He departed, assuming

that the police were going to take her either to the hospital or

the police station. At some point after his departure, the

police sent the wife home alone, resulting in her fall to the

bottom of an embankment and serious injury. We affirmed,

finding that there was “sufficient evidence in the summary

judgment record to show that . . . the police officers used their

authority as police officers to create a dangerous situation or

to make [the wife] more vulnerable to danger [than] had they

not intervened. . . . As a result of the affirmative acts of the

police officers, the danger or risk of injury to [the wife] was

greatly increased.” Kneipp, 95 F.3d at 1209.

In Morse, we characterized the issue raised under the

fourth element of a state- created danger claim as whether

“the state actors ‘used their authority to create an opportunity

that otherwise would not have existed for the third party’s

crime to occur.’” Morse, 132 F.3d at 915 (quoting from

Marks v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.

1995)). We affirmed the District Court’s dismissal of the

complaint, however, based on the plaintiff’s failure to satisfy

the first element of a state-created danger claim, i.e., on the

facts alleged, the third parties’ “deadly attack was not a

foreseeable and fairly direct result of defendants’ behavior.”

15

Id. at 915-16.7

7

As the dissent notes, Morse observes: “the dispositive

factor appears to be whether the state has in some way placed

the plaintiff in a dangerous position that was foreseeable, and

not whether the act was more appropriately characterized as an

affirmative act or an omission.” Morse, 132 F.3d at 915. It is

important to put this observation in context, however. This

sentence appears in Morse’s discussion of the district court’s

application of the fourth element of the test. The district court

identified a single alleged affirmative act—the defendants

having unlocked the back door to a school through which the

plaintiff’s attacker entered—and expressed uncertainty as to

whether this affirmative act was sufficient to establish liability.

We concluded the question of whether an affirmative act was

required had been answered by Mark v. Borough of Hatboro.

Mark articulated the fourth element of the test as requiring that

“state actors used their authority to create an opportunity that

otherwise would not have existed for the third party’s crime to

occur.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d

Cir. 1995). A use of authority that creates an opportunity for

harm necessarily entails an affirmative act. But an affirmative

act, while necessary, is not sufficient. The test also requires a

direct causal relationship between the affirmative act and

foreseeable harm to the plaintiff. In Morse, this meant asking

whether unlocking the door created a foreseeable opportunity

for the plaintiff to be attacked by a mentally ill intruder. Only

then would the state actor have “used its authority to create an

opportunity which otherwise would not have existed for the

specific harm to occur.” Morse,132 F.3d at 914. In this context,

we do not read Morse’s language to suggest liability can be

16

III.

Bright insists that the state actor-defendants caused

Annette Bright’s death in three ways: (1) the “inexplicable

delay” by numerous state actors in pursuing the revocation of

Koschalk’s parole left him in a position to kill Annette; (2)

Officer Franzaglio’s assurance that Koschalk would be taken

into custody was relied upon by Bright and resulted in

Bright’s failing to take steps to protect Annette; and (3)

Officer Whalen’s confrontation of Koschalk in May and the

want of any prompt follow-up by the state actors

“emboldened” him to commit a crime he otherwise would not

have committed. Like the District Court, we find it

unnecessary to consider anything other than the fourth

essential element of a meritorious state-created danger claim.8

based on an omission alone or a failure to act. We read it to

clarify that the relevant test involves asking whether a state

actor’s behavior constituted an affirmative act, and, if so,

whether the affirmative act created a foreseeable opportunity for

harm.

8

Judge Smith would hold that the motion to dismiss was also

properly granted based on Bright’s failure to plead facts

sufficient to satisfy the first prong of the state-created danger

test. In his view, the harm ultimately caused was a not

“foreseeable and a fairly direct result of the state’s actions.”

Morse, 132 F.3d at 908. Because the crime of corrupting the

morals of a minor is different in degree and kind from the crime

of murder, it is not – without more – foreseeable to a state actor

that failing to detain a pedophile will result in homicide. In

17

We conclude that the state cannot “create danger” giving rise

to substantive due process liability by failing to more

expeditiously seek someone’s detention, by expressing an

intention to seek such detention without doing so, or by taking

note of a probation violation without taking steps to promptly

secure the revocation of the probationer’s probation.

A.

Bright argues that this case is unique because “the

probation officer personally witnessed the offending violation

and was in a position to act promptly,” but there was an

“inexplicable delay” of ten weeks before a probation

revocation hearing was scheduled. Br. Appellant at 26. This

theory of liability based solely on a failure of the state to act is

clearly foreclosed by DeShaney. Even if Officer Whalen’s

knowledge of the encounter at Target could be reasonably

regarded as knowledge of a danger to Annette, we know from

DeShaney that no affirmative duty to protect arises “from the

State’s knowledge of the individual’s predicament.”

DeShaney, 489 U.S. at 200. Liability requires affirmative

state action; mere “failure to protect an individual against

private violence” does not violate the Due Process Clause. Id.

at 197.

B.

Judge Smith’s view, because Bright failed to allege that state

officials had any knowledge of any threatening or criminal

conduct except the probation violation itself, Annette Bright’s

murder was not a foreseeable result of the state’s action.

18

Officer Franzaglio assured Bright approximately three

weeks before Annette’s death that Koschalk would be arrested

and “[i]n reliance upon these assurances, Bright failed to take

defensive actions, such as leaving the area with his family,

hence creating the opportunity for the damages ultimately

sustained.” First Amended Complaint ¶ 30(g)(2), App. at

58a. State-created danger liability cannot be predicated on

these facts, however. The Supreme Court has spoken directly

to this matter. Bright does not, and cannot, claim that the

state in any way restricted his freedom to act on his family’s

own behalf. The DeShaney Court specifically held that, under

these circumstances, no “affirmative duty to protect arises . . .

from the State’s . . . expressions of intent to help” an

individual at risk. DeShaney, 489 U.S. at 200 (emphasis

added). Once again, the governing rule is that there can be no

liability in the absence of an affirmative exercise of state

authority.

C.

Finally, Bright alleges that the parole officer’s

“confrontation with Koschalk, coupled with . . . inexplicable

delay emboldened Koschalk into believing that he would not

confront effective law enforcement action as he progressed

with his scheme to retaliate against the Bright family.” First

Amended Complaint ¶ 31, App. at 58-a. Here, again, Bright

seeks to bring the law enforcement delay within the scope of

the state-created danger doctrine by pointing to an affirmative

action of the state which preceded it. The reality of the

situation described in the complaint is that what is alleged to

have created a danger was the failure of the defendants to

19

utilize their state authority, not their utilization of it. Bright

has identified no action of the defendants that utilized their

state authority in a manner that rendered Annette more

vulnerable to Koschalk than she would otherwise have been.

It is Officer Whalen’s alleged decision not to arrest in May

and the ensuing ten week delay about which Bright

complains. It is that failure to arrest and detain that his brief

argues created the danger, made Annette’s death foreseeable,

and was the product of deliberate indifference.

It is true, as we have noted, that Bright’s complaint

alleges in conclusory fashion that it was both Officer

Whalen’s “confrontation with Koschalk” and the

“inexplicable delay” that “emboldened” Koschalk. Based on

the allegations of the complaint as a whole, however, one

cannot reasonably infer that there was any connection

between Officer Whalen’s accusing Koschalk of a probation

violation and Koschalk’s decision to murder Annette ten

weeks later. It is specifically alleged that what “emboldened”

Koschalk and thereby contributed to that decision was a belief

“that he would not confront effective law enforcement action

as he progressed with his scheme to retaliate.” First Amended

Complaint at ¶ 31, App. at 58a. It is the state’s creation of

that belief that is said to have rendered Annette more

vulnerable than she would otherwise have been. We may

assume for present purposes that the creation of that belief

could reasonably be attributed to the ten week delay in

serving Koschalk with notice of his probation violation

hearing. It could not reasonably be attributed, however, to the

probation officer’s calling a probation violation a probation

violation when confronted with it on May 4th.

20

While a probation officer here took affirmative action

seeking compliance with the court’s protective order, just as

the social workers took affirmative action to secure and then

relinquish custody of Joshua DeShaney, the Due Process

Clause did not require that Westmoreland County “become

the permanent guarantor” of the Bright family’s safety from

private violence any more than it required Winnebago County

to “become the permanent guarantor” of Joshua’s safety from

the same sort of harm. Id. at 201. As in DeShaney, the only

affirmative exercise of state authority alleged in this case –

the so-called “confrontation” – “placed [the Brights] in no

worse position than that in which [they] would have been had

[the state] not acted at all.” Id. In short, the Brights were at

no greater risk immediately following the confrontation than

they were when it commenced. With respect to the ensuing

delay in exercising state authority, here, as in DeShaney, the

“most that can be said of the state functionaries in this case is

that they stood by and did nothing when . . . circumstances

dictated a more active role for them.” DeShaney, 489 U.S. at

203. The confrontation was not a misuse of state authority,

and the subsequent failure to exercise state authority was not a

violation of the Due Process Clause under DeShaney.

IV.

Turning to Bright’s state claims, the District Court

determined that Westmoreland County, the City of Monessen,

and the individual state employees were entitled to immunity

from those claims. It further concluded that it should decline

to exercise its supplemental jurisdiction with respect to

Bright’s claims against Koschalk.

21

On appeal, Bright does not challenge the merits of the

District Court’s determination that the county and city were

entitled to municipal immunity. Rather, he insists that the

Court, having dismissed the federal claims, should have

declined to entertain any of Bright’s state claims. With

respect to the claims against the individual state defendants,

Bright argues, in the alternative, that these defendants were

not entitled to immunity under the PPSTCA. Finally, Bright

insists that, if the District Court properly decided to determine

the state claims against the county, the city, and their

employees, it should not have abstained with respect to the

claims against Koschalk.

A.

While our Court reviews district court decisions to

exercise supplemental jurisdiction for abuse of discretion, see

DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.

2003), we have also found that:

[W]here the claim over which the district court has

original jurisdiction is dismissed before trial, the

district court must decline to decide the pendent state

claims unless considerations of judicial economy,

convenience, and fairness to the parties provide an

affirmative justification for doing so.

Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d

Cir. 1995).

The District Court recognized this rule and explained

22

that there were no “extraordinary circumstances” here that

would “warrant the exercise of jurisdiction over the state

claims” against Koschalk. App. at 19-a. While it did not

expressly address why it was proceeding to exercise

jurisdiction over the other state claims, we believe that the

District Court’s reason for distinguishing between the two

classes of claims is both apparent and appropriate.

Governmental immunity – such as immunity for

municipalities and for public employees acting within the

scope of their duties under 42 Pa. Cons. Stat. §§ 8541, 8545 –

serves the public interest in avoiding burdening the state and

its employees with unnecessary litigation. Pennsylvania

immunity law appears to be no exception. See Kuzel v.

Krause, 658 A.2d 856, 858 (Pa. Commw. Ct. 1995)

(“Sovereign and governmental immunity involve the

constitutional question of the Commonwealth consenting to

be sued and the effect those suits would have on the public

purse . . . .”). See also In re Upset Sale, 522 Pa. 230, 232 (Pa.

1989) (finding the defense of municipal immunity non-

waivable by litigants because “a governmental agency cannot

be put at the mercy of negligent . . . waiver by counsel of a

substantive right designed to protect its very existence”). The

public interest protected by immunity doctrine has prompted

our Supreme Court to advise that immunity issues should be

resolved “early in the proceedings so that the costs and

expenses of trial are avoided where the defense is

dispositive.” Saucier v. Katz, 533 U.S. 194, 200 (2001).

Understandably, the state defendants filed their

motions to dismiss the state claims on immunity grounds

23

shortly after learning of this action against them, and those

motions were briefed and argued simultaneously with the

motions to dismiss the § 1983 claims for failure to state a

claim. Accordingly, at the point when the District Court

concluded that the federal claims should be dismissed, it was

in a position to rule without delay on the state defendants’

entitlement to immunity. Given that any further delay in

ruling on that entitlement would undermine an important

objective of the state in recognizing such immunity, it is not

surprising that the District Court exercised jurisdiction with

respect to the motions of the state defendants while declining

to do so with respect to Koschalk, who had no claim of

immunity. In fairness to the state-actor defendants, the

District Court could hardly have done otherwise.

B.

The District Court concluded that the individual state-

actor defendants were entitled to immunity under PPSTCA

because Bright’s allegations “could not support a finding that

the individual defendants ‘intended to violate the law or bring

about the harm that resulted to the plaintiffs.’” Id. at 17a

(quoting from Leidy v. Borough of Glenolden, 277 F.Supp.2d

547 (E.D. Pa. 2003)). We agree.

Under § 8545 of the PPSTCA, a municipal employee

“is liable for civil damages on account of any injury to a

person or property . . . only to the same extent as his

employing local agency . . . .” 42 Pa. Cons. Stat. § 8545.

Local agencies are given broad immunity in 42 Pa. Cons. Stat.

§ 8541 which is qualified by eight exceptions that do not

24

apply to this case. The PPSTCA contains an additional

exception from immunity where a public employee is

concerned:

In any action against a local agency or

employee thereof for damages on account of an

injury caused by the act of the employee in

which it is judicially determined that the act of

the employee caused the injury and that such act

constituted a crime, actual fraud, actual malice

or willful misconduct, the provisions of sections

8545 . . . shall not apply.

42 Pa. Cons. Stat. § 8550. “Willful misconduct” – the only

clause that Bright argues describes the conduct of these

defendants – has recently been defined as follows:

Willful misconduct . . . has been defined by our

Supreme Court to mean conduct whereby the

actor desired to bring about the result that

followed or at least was aware that it was

substantially certain to follow, so that such

desire can be implied. . . . To prove willful

misconduct, a plaintiff must establish that the

actor desired to bring about the result that

followed, or at least it was substantially certain

to follow, i.e., specific intent.

Robbins v. Cumberland County Children and Youth Services,

802 A.2d 1239, 1252–53 (Pa. Commw. Ct. 2002). Our Court

has also recognized that “‘[w]illful misconduct’ in this

25

context has the same meaning as the term ‘intentional tort.’”

Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir.

2001) (citing Delate v. Kolle, 667 A.2d 1218, 1221 (Pa.

Commw. Ct. 1995) and Kuzel v. Krause, 658 A.2d 856, 859

(Pa. Commw. Ct. 1995)). Thus, even where a public

employee acts with a degree of culpability equivalent to

“recklessness,” Pennsylvania law nevertheless affords him

immunity. Williams v. City of Philadelphia, 569 A.2d 419,

421-22 (Pa. Commw. Ct. 1995) (“[T]he failure [of two public

employees] to take greater precautionary measures in light of

the circumstances, exemplifies a reckless disregard of the

existing danger; however, that behavior constitutes wanton,

not willful, misconduct. . . . [T]hey are immune from liability

under section 8545 of the Code.”).

Bright does not allege that the individual state

defendants desired to bring about harm to Annette Bright (or

to her sister) or that they were aware that such harm “was

substantially certain to follow.” Rather, Bright alleges in his

complaint that they acted with “deliberate indifference,” App.

at 58a, and argues in his brief that they “knowingly and

deliberately disregarded a known risk.” Br. Appellant at 26.

Assuming arguendo that a reasonable jury could infer such

culpability from the facts alleged, the individual state-actor

defendants would still not have engaged in “willful”

misconduct and would still be entitled to immunity.

C.

Bright has pointed to no considerations of judicial

economy, convenience, or fairness to the parties which would

26

have provided the District Court with an affirmative

justification for adjudicating the claims against Koschalk after

dismissing the federal claims. And we perceive none.

V.

The judgment of the District Court will be affirmed.

BRIGHT V. WESTMORELAND COUNTY - NO. 05-2005

27

NYGAARD J., dissenting:

I believe that the majority incorrectly states the

elements of our state-created danger exception in such a way

that leads them to incorrectly identify the dispositive inquiry

that drives our state-created danger test. This mis-focus, in

turn, has caused them to make analytical missteps in assessing

the adequacy of the claim presented in this case. It is

axiomatic that the pleadings in this case must be taken in their

entirety in ruling upon a motion under Rule 12(b)(6). In my

view, when assessed cumulatively, they establish not only the

existence of affirmative acts, but more importantly, that the

state used its authority to place the plaintiff in a position of

enhanced danger, thereby meeting the fourth element of the

state-created danger test. Hence, I respectfully dissent.

I. The Fourth Element of the State-Created Danger Test

The majority submits that the test developed in our

Circuit to assess the adequacy of a state-created danger claim

contains the word “affirmatively.” Specifically, they state the

fourth element of the test as whether:

(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.

Maj. Op. at 9 (emphasis added). This, quite plainly, is an

incorrect statement of our test. Since Kneipp v. Tedder, 95

F.3d 119 (3d Cir. 1996) enunciated our state-created danger

28

test, not one of our cases has inserted the word

“affirmatively” into the fourth element of the test.9 See Mark

v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)

(“Cases like these have four things in common: ... (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.”); Kneipp, 95 F.3d at 1205 (applying the Mark 4-part

test); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908

(3d Cir. 1997) (quoting and applying the Mark 4-part test);

Smith v. Marasco, 318 F.3d 497, 506 (3d Cir. 2003) (noting

the fourth element of the Kneipp test as, “(4)[whether] the

state actors used their authority to create an opportunity that

otherwise would not have existed for the third party’s crime to

occur.”); Scheiber v. City of Philadelphia, 320 F.3d 409, 417

(3d Cir. 2003) (quoting the Kneipp test); Rivas v. City of

Passaic, 365 F.3d 181, 197 (3d Cir. 2004) (“The last element

of the Kneipp test asks whether the state actor used his or her

authority to create an opportunity, which otherwise would not

have existed, for the specific harm to occur.”). The majority

does not cite, nor can I find, any case or other form of support

for its claim, today, that the test that our Circuit has developed

9

Our initial attempt to establish a test for the state-created

danger exception to Deshaney v. Winnebago Cty. Servs. Dept.,

489 U.S. 189 (1989) can be traced to Mark v. Borough of

Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995) even though it has,

since Kneipp, been known as the Kneipp test. Recently, Judge

Ambro accurately charted modifications to our test, leading him

to question the appropriateness of continuing to refer to the

Deshaney exception as the Kneipp test. See Rivas v. City of

Philadelphia, 365 F.3d 181, 202-03 (3d Cir. 2004).

29

includes the word “affirmatively” in the fourth element.

II. The Central Inquiry and Analysis Under the Fourth

Element

By its insertion, the majority signals its belief that the

hallmark inquiry under the fourth element is whether the

state’s actions can be characterized as affirmative or not.10 As

I address below, this assertion stands quite starkly in contrast

to the dispositive inquiry for addressing the state-created

danger exception established by our Court.11

10

The majority states, “[i]t is important to stress, for present

purposes, that under the fourth element of a state-created danger

claim, ‘[l]iability under the state-created danger theory is

predicated upon the states’ affirmative acts which work to the

plaintiffs’ detriments in terms of exposure to danger.’” Maj. Op.

at 10 (citations omitted).

11

I am not suggesting that the presence of an affirmative act

does not play a part in our state-created danger inquiry. To

satisfy the fourth element, there still must be something more

than simple inaction by the state even “when suspicious

circumstances dictate[] a more active role.” Deshaney, 489 U.S.

at 203. However, this inquiry is limited in its effectiveness. As

I discuss below, to hold that the mere presence of omissive acts

abrogates any ability to satisfy the fourth element, especially

when combined with other affirmative conduct, misconceives

the nature of our test and the language from which the state-

created danger exception derives: “[w]hile the state may have

been aware of the dangers that Joshua faced in the free world, it

30

Our recent cases have shifted away from inquiring into

the existence of affirmative acts as a standard to establish the

fourth element of our test for a compelling reason: to so hinge

our inquiry would center us squarely within the troublesome

decisional thicket governing the distinction between action

and inaction.12 Writing for the Court in Morse, Chief Judge

Scirica addressed the significance of this dilemma:

one of the common factors in cases addressing the

state-created danger is that the state actors “used their

played no part in their creation, nor did it do anything to render

him any more vulnerable to them.” Id. at 201.

12

When the Mark Court formulated, for the first time, our

Circuit’s test for the state-created danger exception, it did so in

full recognition of the United States Court of Appeals for the

Seventh Circuit’s articulation in Bowers v. DeVito, 686 F.2d 616

(7th Cir. 1982):

We do not want to pretend that the line between action

and inaction, between inflicting and failing to prevent the

infliction of harm, is clearer than it is. If the state puts a

man in a position of danger from private persons and

then fails to protect him, it will not be heard to say that

its role was merely passive; it is as much an active

tortfeasor as if it had thrown him into the snake pit.

Bowers, 686 F.2d at 618. These words ring true today. As I

explain later, the claim at issue in this case is exactly that the

state put a person in a position of danger and then failed to

protect them. To characterize this as a merely passive act is

overtly wrong.

31

authority to create an opportunity that otherwise would

not have existed for the third party’s crime to occur.”

The dispositive factor appears to be whether the state

has in some way placed the plaintiff in a dangerous

position that was foreseeable, and not whether the act

was more appropriately characterized as an

affirmative act or omission.

Morse, 132 F.3d at 915 (emphasis added) (citations omitted).

In Morse, we rejected the affirmative act/omission inquiry

because of the difficulty it posed in reaching sound

conclusions. Id. at 914 (noting that “[c]onduct that has been

held to be an affirmative act under one set of facts has not met

that standard in a similar setting.”). And we criticized the

District Court for reading the fourth element “to contemplate

that a state actor must affirmatively act to create the risk

which results in harm to the plaintiff.” Id. at 914. We also

explicitly recognized that the question of whether an

affirmative act is required had already been answered. Id. at

915 (“[w]hether an affirmative act rather than an act of

omission is required ... ha[s] been answered by Mark”).

Consequently, as Morse represents a controlling case, I cannot

join in the majority’s assertion to the contrary, that the

hallmark of our test is whether the acts can be characterized

as affirmative.

Morse is not the only controlling case the majority

elides. Rivas reflects our most recent chance to address the

state-created danger exception and further cements Morse’s

rejection of the affirmative act/omission inquiry. There,

Emergency Medical Technicians (“EMTs”) called for police

backup after encountering a severely psychotic and

32

convulsing middle-aged man. Upon the police officers’

arrival, the EMTs informed them that the man, Mr. Rivas, had

assaulted one of the EMTs. They failed to advise the police,

however, that Mr. Rivas had a medical condition that

explained his actions, and the EMTs then abandoned control

over the situation. After an altercation with the police, Mr.

Rivas was placed on stretcher and at some point stopped

breathing and died. We found that the EMTs’ conduct, taken

cumulatively, satisfied the fourth element of the state-created

danger test. Specifically, we concluded that the conduct

“created an opportunity for harm that would not have

otherwise existed” and that “were it not for those acts, Mr.

Rivas presumably could have remained in the apartment’s

bathroom for the duration of his seizure without incident.”

Rivas, 365 F.3d at 197.

Looking closely at the relevant conduct in Rivas, it is

clear that our approach under the fourth element of the state-

created danger exception now rests some distance away from

the affirmative act/omission inquiry. In Rivas, the conduct we

found to have met the fourth element of the test involved an

initial act by the EMTs - calling and informing the officers of

Mr. Rivas’ assault on one of the EMTs - and then two

omissions - not advising the officers of Mr. Rivas’ medical

condition and abandoning control over the situation. We

found this conduct to have met the fourth element of the test

despite, or rather in spite of, any act/omission characterization

that might have been made. Thus, Rivas stands both for our

Court’s shift away from the affirmative act/omission inquiry

and also for the proposition that the conduct must be looked

at in its entirety to determine whether the state placed the

33

plaintiff in a position of enhanced danger.

Today’s case presents a set of pleadings which, if

proven, would establish nearly identical conduct as that

analyzed in Rivas. Bright claims that the initial confrontation

between Koschalk and his parole officer, while Koschalk was

violating his parole, and then the failure by that parole officer

to take appropriate action on this violation emboldened

Koschalk to believe he could act with impunity in carrying

out his increasingly delusional and violent threats and plans.

The conduct alleged here, when taken together, contains both

an initial act - the confrontation between the parole officer

and Koschalk - and then an omission - the parole officer’s

abdication of his responsibility to take action on a clear parole

violation.

We cannot simply annul Rivas’ prescription that it is

the totality of the conduct that must be analyzed under the

fourth element of the state-created danger exception. The

majority dismisses Bright’s claim on the basis that “Bright has

identified no action of the defendants that utilized their state

authority in a manner that rendered Annette more vulnerable

to Koschalk than she otherwise would have been” and that “it

is the ensuing ten week delay about which Bright complains.”

Maj. Op. at 15 (emphasis added). I am at a loss to understand

how, based on the pleadings here, the majority could claim

that there is “no action of the defendants that utilized their

state authority in a manner that rendered Annette more

vulnerable” to harm. Bright has repeatedly and specifically

claimed that the confrontation itself was the trigger for

34

increasing Koschalk’s disposition to violence.13 Had there

been no confrontation but rather merely a delay of

enforcement, Bright could not successfully claim that

Koschalk was emboldened to act more violently.14 Instead,

13

As this appeal comes to us on a Rule 12(b)(6) motion, I

cannot accept the majority’s conclusory dismissal of the

plaintiff’s allegations. Bright must only satisfy the liberal notice

pleading requirements under Rule 8(a). See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 512-13 (2002). Accordingly, we

are bound not to dismiss the complaint “unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claims which would entitle him to relief.” Conley

v. Gibson, 335 U.S. 41, 45–46 (1957). Additionally, we are

bound to construe all reasonable inferences in favor of the

plaintiff. See id. Thus, for the purposes of this case, we should

not dismiss Bright’s claims if the sum of all alleged facts would

show that the state used its authority in a way that created a

danger to the plaintiff or that rendered the plaintiff more

vulnerable to danger than had the state not acted at all.

14

Indeed, had Bright’s claim alleged merely that the parole

officer’s failure to arrest Koschalk created an opportunity for

harm that would not have otherwise existed, this would have

been an easy case. Such a claim would clearly fail under the

state-created danger doctrine, precisely because there would

have been nothing to support the requirement that the state have

placed the plaintiff in a position of enhanced danger. Such a

pleading would be governed by Deshaney’s rule requiring

something more than mere idleness, even where circumstances

35

the confrontation itself plays an integral role in creating an

opportunity for harm that would otherwise not have existed,

placing this case outside the purview of Deshaney and firmly

within the ambit of our state-created danger exception.

To highlight my problem with the majority’s logic, if

we applied it to the facts in Rivas it would read something like

this: “the fault Rivas finds is solely with the EMTs’ failure to

disclose certain information and the abdication of

responsibility. Because there is nothing affirmative in these

acts, the claim cannot be sustained.” The majority’s

approach, emphasizing as it does the necessity of

characterizing acts as affirmative, only underscores its

inadequacies. By cabining Bright’s claim as based solely on

an ensuing delay in taking action, the majority lops off the

initial affirmative act so it can conclude that there was no

affirmative act. I fail to understand how this analysis at all

resembles the meaning of our fourth element inquiry.

Without belaboring the point more, the basis of

Bright’s claim is that the affirmative confrontational act, like

the initial act of the EMTs in Rivas, taken together with the

ensuing conduct, created an opportunity for harm that

otherwise would not have existed, thus surpassing the

threshold necessary to meet the fourth element of the state-

created danger test. Regardless of whether Bright can

ultimately prove this, if our test is to have any content, he is at

least entitled to try.

dictate a more active role, in order for a claim to be stated. See

Deshaney, 489 U.S. at 203.

36

III. Emboldenment Claims under the State-Created

Danger Exception

This appeal poses the question of whether our state-

created danger exception supports a theory of emboldenment.

Our Court has never addressed, head on, this specific

question.

As the above analysis makes clear, Bright’s claim, for

the purposes of the fourth element of the state-created danger

claim, is analogous to Rivas. Because we held that the claim

in Rivas met the fourth element of the state-created danger

test, so too, we must hold here. Implicit in my conclusion,

then, is the belief that our state-created danger exception

allows for a claim premised on an emboldenment theory. To

hold otherwise would render the render the state-created

danger exception logically and analytically inconsistent.

The majority rejects Bright’s emboldenment claim by

responding that, despite the pleadings to the contrary, Bright

is unable to bring his claim within the state-created danger

exception. This simple assertion, without more, is

insufficient.

Importantly, the difference between Rivas and this case

is not in the nature of the relevant conduct - in each case the

plaintiff has pleaded a combination of affirmative acts and

omissions - or in the general effect that the conduct has had

on the situation - in each case the claimed effect was that the

plaintiff was placed in a situation of enhanced danger.

37

Instead, the only difference is in the theory of how the

claimed conduct placed the plaintiff in a position of enhanced

danger. In Rivas, the alleged behavior put the plaintiff in a

position of enhanced danger because the EMTs called the

police and only disclosed certain information about the nature

of the situation - information which affected the way the

officers handled the situation - and then abandoned control

over the event. We might say that this claim is premised on a

theory of misrepresentation; that is, the EMTs’

misrepresentation to the officers enhanced the danger to the

plaintiff because it created a situation where the officers

would act more violently. Here, Bright’s claim is premised

on a theory of emboldenment: the increased danger arose

from Koschalk’s confrontation with his parole officer and

ensuing lack of effective enforcement because it emboldened

Koschalk to act more violently.

I can see no logical or analytical reason to allow Rivas’

claim and not Bright’s. For the purposes of the fourth

element, there is simply no functional difference between the

two claims, precisely because the result is the same. In both,

the state has acted to place the plaintiff in a position of

increased danger. True, the claims posit different theories as

to why the plaintiff was placed in a position of enhanced

danger, but nevertheless, both establish the claim that, but for

the state’s conduct, the plaintiff would not have been placed

in that position at all. Because our inquiry under the fourth

element asks exactly this, both claims meet the test.

IV.

38

When viewed in light of our jurisprudence and our

current position on the proper inquiry for the state-created

danger exception, the majority’s initial insertion takes on a

significantly different character and changes materially our

inquiry. By inserting the word “affirmatively,” the majority

reworks not only the actual language of our test, but also our

central inquiry in light of Morse and Rivas.

Moreover, until today our case law has evidenced an

unambiguous shift away from reliance on the frustratingly

murky distinction between affirmative action and omission. I

fear that with a single insertion, the majority succeeds in

pulling us right back in. We have consciously and, I believe,

prudently moved away from this distinction precisely because

of the difficult and often fruitless analysis required therefrom.

Thus it is true, as the majority asserts, that “[i]t is the misuse

of state authority, rather than a failure to use it, that can

violate the Due Process Clause.” Maj. Op. at 10. But this

statement proves too much. It exposes the principle,

established in Morse and Rivas, that the central inquiry of our

state-created danger test is whether the state placed the

plaintiff in a position of enhanced danger. We cannot ignore

this principle because we believe the inquiry should be

something else. It is true that the Court in Deshaney sought

impartiality in the face of “natural sympathy.” Deshaney, 489

U.S. at 212. Importantly for the plaintiffs in this case,

however, we should not plunder whatever merit that

exhortation may have had. Tragedy should not incite

illegitimate influence; yet neither should it be dismissed

before it has had a chance to plead its case.

39

Upon the foregoing, I respectfully dissent.

40