Estate of Bailey ex rel. Oare v. County of York

ADAMS, Circuit Judge,

dissenting.

Like the majority, I agree that it is incumbent upon us to determine whether the alleged misconduct by the defendants— here the negligent monitoring of the mother’s household to which Aleta had been returned — was so removed from Aleta’s death that as a matter of law the dismissal of the complaint should be affirmed. Because I differ from the majority’s conclusion that the plaintiff’s allegations in this jase relating to causation distinguish it significantly from Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), I respectfully dissent.

By its express terms § 1983 creates liability for state action that has caused a ■ plaintiff to be subjected to the deprivation of a constitutional right. When, for exam- *512 pie, liability is urged on the theory of a defective institutional policy, the causation requirement of the statute mandates that the plaintiff demonstrate “a causal link between execution of the policy and the injury suffered.” See Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984); Rymer v. Davis, 754 F.2d 198, 201 (6th Cir.1985); see also City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 2435 , 85 L.Ed.2d 791 (1985) (“there must be an affirmative link between the policy and the particular constitutional violation alleged”). Inasmuch as § 1983, which was designed to vindicate the fourteenth amendment, reaches only conduct under color of state law, formidable causation issues may be raised when the facts alleged suggest that the state action may have consisted essentially of a failure to prevent the misconduct of a private third party.

The Supreme Court has stated that questions of causation under § 1983 do not turn on the determination whether, as a matter of state tort law, the defendant had a duty to the plaintiff, or could be said to have proximately caused the injury. Martinez, 444 U.S. at 284 , 100 S.Ct. at 558 . Rather, it would seem more appropriate to resolve these issues with reference to the policies and values pertinent to the federal civil rights act, as opposed to the vagaries of the common law. See Eaton, Causation in Constitutional Torts, 67 Iowa L.Rev. 443, 475 (1982). Particularly apposite in this regard, I believe, is this Court’s statement in Davidson v. O’Lone, 752 F.2d 817 , 827 (3d Cir.1984), cert. granted sub nom. Davidson v. Cannon, — U.S. -, 105 S.Ct. 2673 , 85 L.Ed.2d 692 (1985) in the context a § 1983 action based on allegations that state prison officials failed to protect an inmate against an assault by another inmate. The Court in O’Lone observed that when a person suffers injury as an incidental and unintended consequence of official action or inaction, the abuse of power by a state official which constitutes “an essential element of a § 1983 action” will often be absent. See also Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir.1979). Moreover, when the complaint suggests that the state action may have constituted simply a failure to prevent the misconduct of a private party, we should be especially mindful of the Supreme Court’s admonition that § 1983 does not create a federal cause of action for every wrong committed by government employees, no matter how unpleasant the consequences, and notwithstanding that the facts might give rise to a state tort law claim. E.g., Martinez, 444 U.S. at 285 , 100 S.Ct. at 559 ; see Paul v. Davis, 424 U.S. 693, 699 , 96 S.Ct. 1155, 1159 , 47 L.Ed.2d 405 (1976).

The present case arises from the district court’s dismissal of the complaint for failure to state a claim upon which relief could be granted. A line of cases in this Court has held plaintiffs in civil rights cases to a heightened standard of specificity in pleading. E.g., Rhodes, 612 F.2d 766 ; Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir.1976). One basis of this requirement is to weed out frivolous or insubstantial cases; a second rationale is to separate those cases involving injuries implicating state actors but that properly “should be litigated in the State courts.” See Rotolo, 532 F.2d at 922 ; Kauffman v. Moss, 420 F.2d 1270 , 1276 n. 15 (3d Cir.), cert. denied, 400 U.S. 846 , 91 S.Ct. 93 , 27 L.Ed.2d 84 (1970). The question for the Court today is thus whether the complaint here alleges a sufficient basis upon which a jury could find that the state action or inaction, as opposed to the conduct of private third parties, has caused the plaintiff to be subjected to the deprivation of a constitutional right. 1

*513 In Martinez , which involved a § 1983 suit against members of a state parole board that had released a person who eventually assaulted and killed the victim, the Supreme Court held that, although the plaintiff may have alleged sufficient facts to demonstrate that the parole board could be said to have a duty to the decedent or to have proximately caused the injury as a matter of state law, the state action nevertheless had not deprived the victim of her constitutional rights. The Supreme Court stressed in its discussion of causation that the alleged deprivation occurred some five months after the challenged state conduct, and that the victim’s life was taken by a person, the parolee, who “was in no sense an agent of” the defendant. 444 U.S. at 285 , 100 S.Ct. at 559 .

An application of these same factors to the present case would suggest that the tragic death of Aleta Bailey was too remote a consequence of the agency’s actions to (hold the defendants responsible under the civil rights statute. A substantial period, five weeks, elapsed between the agency’s control of Aleta and her subsequent death. More importantly, Aleta was killed by two persons who were in no sense agents of the state. Cf. Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir.1981) (abuse of child in custody by a foster parent who had been certified by the state). 2

Although as the majority notes the child welfare agency may have been aware that Aleta faced dangers not shared by all children in Pennsylvania, cf. Martinez, 444 U.S. at 285 , 100 S.Ct. at 559 (awareness of “special dangers”), I do not believe that the steps allegedly taken by the state employees created the sort of special relationship that might support the finding of a sufficient causal link with the criminal acts of private persons five weeks after the state agency had returned Aleta to her natural mother.

Finally, it bears emphasis that § 1983 was enacted to deal primarily with acts of discrimination by state officials. There is a danger that by extending this important legislation to contexts far removed from Congress’ original and overarching purposes, a national state tort claims act administered in the federal courts in effect will be created. Steps in that direction should not be lightly taken since the ultimate outcome of such a course might well be incongruent with our role as federal judges. When a court extends a statute far beyond what was contemplated by Congress, it transgresses the concept of separation of powers.

For the foregoing reasons, and primarily because I believe Martinez to be controlling, I respectfully dissent.

*514 Before ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON and MANSMANN, Circuit Judges.

. To remand a legally insufficient claim for trial wastes the time and resources of the litigants as well as those of the courts, in addition to creating the risk of an erroneous result.

Neither Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008 , 102 S.Ct. 1646 , 71 L.Ed.2d 876 (1982), nor the recent decision of Pembaur v. City of Cincinnati, 746 F.2d 337 (6th Cir.1984), cert. granted, - U.S. —, 105 S.Ct. 3475 , 87 L.Ed.2d 611 (1985), cited by the majority, stand for the proposition that it is generally imprudent for courts *513 of appeals to determine at an early procedural stage whether as a matter of law an alleged injury might have been caused by state action instead of remanding that issue for a determination after factual development at trial. Procedurally, both the cited cases reached the appellate court after trial. Moreover, in Pembaur the Sixth Circuit remanded to the trial court the issue of causation because the district court had erroneously identified the city policy at issue in the case and consequently never made a proper causation determination. 746 F.2d at 342 .

. The Supreme Court's recent decision in Brandon v. Holt, — U.S. -, 105 S.Ct. 873 , 83 L.Ed.2d 878 (1985), offers plaintiffs little assistance in this regard. That case stands for the proposition that a judgment against a public servant in his official capacity imposes liability on the entity he represents. There was no claim in Brandon that the complaint had not alleged a sufficient causal nexus between the actions of all the defendants and the plaintiffs' injuries. In Brandon , defendant Allen was the police officer who actually assaulted the plaintiffs. His supervisor, defendant Chapman, was the director of the police department, sued in his official capacity. Deficient procedures employed by Chapman essentially covered up officer misconduct and totally insulated supervisors from knowledge of wrongdoing by officers. 105 S.Ct. at 876 n. 6. Because of these faulty procedures, the supervisors of the police department ignored or were unaware of Allen’s history of violent and irregular behavior, including several complaints of abuse of authority and use of unnecessary force. This failure to take steps to prevent repeated abuse of official authority by subordinates is far different from the allegations in the present case of a failure to protect a child from the criminal acts of independent third persons.