Opinion
CIVIL ACTION NO. 16-0591
07-29-2016
ANTHONY B. QUINN, ESQUIRE Plaintiff v. POLICE OFFICER BADOLATO, et al. Defendants
MEMORANDUM OPINION
INTRODUCTION
On February 22, 2016, Anthony B. Quinn, Esquire ("Plaintiff"), filed a first amended complaint against Defendants Police Officer Badolato ("Officer Badolato"), Jordan Lovitz ("Lovitz"), and Springfield Towing & Recovery, LLC ("Springfield Towing") (collectively, "Defendants"), asserting claims under 42 U.S.C. § 1983 ("§ 1983") and 42 U.S.C. § 1985(3) ("§ 1985(3)") for the violation of his substantive due process rights. [ECF 2].
Plaintiff, in his amended complaint, misspells Defendant Officer Badolato's last name as Baldato.
Although Plaintiff named two John Doe police officers as defendants, they have not yet been served nor identified. (See Am. Compl. ¶ 5).
In the statement of claim and jurisdiction in the amended complaint, Plaintiff indicates that "this is an action for money damages brought pursuant to 42 U.S.C. §§ 1983 and 1988 . . . ." However, Count Two clearly indicates that the claims under that count are brought pursuant to § 1985(3) and not § 1988. Therefore, this Court will address the arguments presented as they relate to § 1985(3).
Before this Court are Defendants' motions to dismiss filed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), [ECF 7, 18 and 21], which seek the dismissal of the civil rights claims asserted in the amended complaint. Plaintiff has filed an opposition to each motion, [ECF 8, 19 and 22], and Defendants Lovitz and Springfield Towing have filed separate replies. [ECF 23, 20, respectively]. The issues have been fully briefed, and the motions are ripe for disposition.
For the reasons set forth, Defendants' motions to dismiss are granted.
BACKGROUND
When ruling on Defendants' motions to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the amended complaint and construe these facts in the light most favorable to Plaintiff. These allegations are summarized as follows:
Plaintiff is a resident of Wyndmoor, Springfield Township, Pennsylvania. (Am. Compl. ¶ 4). Springfield Towing is a Pennsylvania towing and recovery limited liability corporation contracted by Springfield Township for automobile towing. (Id. at ¶ 6). Officer Badolato and the two John Doe Officers are alleged to be police officers from Springfield Township, Pennsylvania. (Id. at ¶ 5).
On February 15, 2014, a heavy snowfall fell in the area of Plaintiff's residence. (Id. at ¶ 8). At approximately 11:45 p.m., a male who Plaintiff identified as Lovitz, an alleged owner/employee of Springfield Towing and an acquaintance of Plaintiff's neighbor, knocked on Plaintiff's door and swore at him. (Id. at ¶¶ 6, 8). Plaintiff called 911, but noticed Officer Badolato and the unidentified uniformed police officers were already in front of his home. (Id. at ¶¶ 9, 10). Plaintiff watched as Officer Badolato "supervised" Springfield Towing and Lovitz plow a mound of snow and ice from the street into the entrance of his driveway. (Id. at ¶¶ 10, 23).
Plaintiff complained to Officer Badolato and the unidentified police officers, and requested that the mound of snow and ice be removed from his property because it was dangerous, and limited Plaintiff's ingress and egress of his property. (Id. at ¶ 11). However, one of the unidentified police officers smiled and smirked at Plaintiff, and stated "it ain't happening." (Id.). Defendants left the area, leaving the mound of snow and ice at the entrance to Plaintiff's property and inside the driveway. (Id. at ¶ 12).
Very cold temperatures overnight and into the next day caused the mound of snow and ice to freeze and solidify. (Id. at ¶ 13). The next day, Plaintiff attempted to remove the mound of ice from his driveway but fell and broke his wrist. (Id. at ¶ 14). Two days later, Plaintiff fell a second time while attempting to scale the mound of ice on his way to work. (Id.). Plaintiff was in a cast for six
weeks which limited his ability to work and subsequently underwent two courses of physical therapy for his wrist and arm. (Id. at ¶ 14).
Plaintiff has not alleged that Defendant Springfield Towing was in a direct contractual relationship with Springfield Township for snow removal.
Specifically, Plaintiff alleges that Defendants, individually and/or collectively, violated his substantive due process rights by creating a "state-created danger" when they plowed a mound of snow and ice into the entrance of his driveway, which caused him to fall and break his wrist. (Id. at ¶¶ 10, 23). As a result, Plaintiff seeks monetary damages from all Defendants for: (1) their alleged violation of his substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; (2) their conspiracy to deprive Plaintiff of his substantive due process rights under § 1985(3); and (3) from Defendants Lovitz and Springfield Towing, for negligence.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) may be granted if the complaint "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, a court must "accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiff's entitlement to relief: it must "show such an entitlement with its facts." Id. (citations omitted).
To determine the sufficiency of a complaint, "a court . . . must take three steps." Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Id. (quoting Iqbal, 556 U.S. at 675) (alterations in original). Second, the court must identify allegations that are merely legal conclusions "because they . . . are not entitled to the assumption of truth." Id. While a complaint need not assert detailed factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Third, a court should assume the veracity of all well-pleaded facts and "then determine whether they plausibly give rise to an entitlement to relief." Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679).
A court may determine that a complaint's factual allegations are plausible if the court is able "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alterations in original). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, "a plaintiff must allege facts sufficient to 'nudge [his] claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). "Although the plausibility standard 'does not impose a probability requirement,' it does require a pleading to show 'more than a sheer possibility that a defendant has acted unlawfully.'" Connelly, 809 F.3d at 786 (citations omitted). Reviewing the plausibility of the complaint is a "context-specific" inquiry and requires a court to "draw on its experience and common sense." Iqbal, 556 U.S. at 663-64.
DISCUSSION
As stated, Plaintiff claims that Defendants, acting under color of law, deprived and/or conspired to deprive Plaintiff of substantive due process rights guaranteed by the Fourteenth Amendment by creating and subjecting him to a state-created danger. Defendants are alleged to have created the state-created danger when, after a heavy snowfall, Defendants plowed a mound of snow and ice from the street into his driveway, which froze overnight into a mound of ice due to freezing temperatures. Sometime during the next day, Plaintiff fell and broke his wrist while attempting to remove the now mound of ice.
To state a viable claim under § 1983, a plaintiff must allege a violation of a right secured by the Constitution and/or laws of the United States, and must show that the deprivation alleged was committed by a person acting under color of state law. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013). Section 1983 does not provide substantive rights, but instead, "provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws." Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004). Here, to establish a § 1983 violation, Plaintiff must allege facts sufficient to establish that each Defendant acted under color of state law and deprived Plaintiff of a right secured by the Constitution and/or the laws of the United States. See Robb v. City of Phila., 733 F.2d 286, 290-91 (3d Cir. 1984). With these basic legal principles in mind, this Court will address Plaintiff's claims.
Plaintiff's Fourteenth Amendment Due Process Claim
In Count One, Plaintiff claims that Defendants violated his substantive due process rights when plowing a mound of snow and ice into the entrance of his driveway, and as a result, he broke his wrist when he fell while attempting to remove the mound. The Fourteenth Amendment of the United States Constitution provides that a state shall not "deprive any person of life, liberty, or property without due process of law." U.S. Const. Amend. XIV, § 1. However, the Constitution "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," such as, by the acts of private individuals. DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). This is true even if governmental interference "may be necessary to secure [those] interests." Id. at 196. "If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." Id. at 196-97. Generally, courts have recognized that the due process clause's purpose is to "protect people from the State, not to ensure that the State protected them from each other." Id. at 196; see also Morrow, 719 F.3d at 166.
In interpreting DeShaney, the Third Circuit Court of Appeals has stated that it "stands for the harsh proposition that even though state officials know that a person is in imminent danger of harm from a third party, the fourteenth amendment imposes upon those state officials no obligation to prevent that harm." Horton v. Flenory, 889 F.2d 454, 457 (3d Cir. 1989); see also Morrow, 719 F.3d at 166 ("[A] State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." (quoting DeShaney, 489 U.S. at 197)). Following DeShaney, the Third Circuit has held that a state may be liable for its failure to protect citizens against private violence when the state (1) enters into a "special relationship" with the plaintiff or (2) creates a danger which results in foreseeable injury to a discrete plaintiff. See Ye v. United States, 484 F.3d 634, 637 (3d Cir. 2007); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996).
In light of the above-cited case law, this Court finds that Defendants generally have no constitutional obligation to prevent harm to Plaintiff under the alleged circumstances. This Court must consider, however, whether either of the two exceptions to the general rule applies to Plaintiff's claims. Because Plaintiff did not, nor can he, assert that the "special relationship" exception exists and/or applies to his § 1983 claim, this Court will only analyze whether Defendants are liable under the so-called "state-created danger" exception to the general rule.
A "special relationship" exists only in the limited circumstances where the state (1) has taken a person into custody or (2) has otherwise prevented that person from helping him/herself. Kneipp, 95 F.3d at 1204-05; D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1370 (3d Cir. 1992). Plaintiff, however, has not pled any facts to show or even suggest that Defendants took him into custody or prevented him from helping himself. As pled, this Court is constrained to apply the "state-created danger" exception to his § 1983 claim.
State-Created Danger Exception
The Third Circuit adopted the so-called "state-created danger" exception in Kneipp, by holding that state actors may be liable under § 1983 if an individual incurs harm as a direct result of certain state action. See Kneipp, 95 F.3d at 1211; Ye, 484 F.3d at 637. That is, "liability may attach where the state acts to create or enhance a danger that deprives a plaintiff of his or her Fourteenth Amendment rights to substantive due process." Morrow, 719 F.3d at 177 (emphasis in original).
To state a claim under the state-created danger exception, Plaintiff must plead facts to satisfy each of the following elements:
(1) the harm ultimately caused was foreseeable and fairly direct;Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (emphasis added).
(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.
In their motions to dismiss, Defendants argue that the facts alleged in Plaintiff's amended complaint fail to satisfy each or most of the elements for a state-created danger claim and, therefore, the amended complaint should be dismissed. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d Cir. 1997) (holding that a plaintiff's failure to meet any one of the elements requires dismissal of a § 1983 claim). This Court agrees, and will address the first and second elements as to all Defendants, and the fourth element as to only Officer Badolato.
Since all the elements must be present to sustain a due process violation based upon the state-created-danger exception, this Court makes no findings as to whether Plaintiff has alleged facts sufficient to meet the third element with respect to any Defendant or the fourth element with regard to Defendants Lovitz and Springfield Towing.
As discussed in greater detail, Plaintiff has also not pled sufficient facts to support the fourth element of a state-created danger claim in regard to Defendant Officer Badolato.
Plaintiff's Injury was Not Foreseeable and Fairly Direct
The first element of a state-created danger claim requires that the harm ultimately caused to Plaintiff was a foreseeable and fairly direct result. Bright, 443 F.3d at 281 (emphasis added). "To adequately plead foreseeability . . . , [the court] require[s] a plaintiff to allege an awareness on the part of the state actors that rises to [the] level of actual knowledge or an awareness of risk that is sufficiently concrete to put the [state] actors on notice of the harm." Phillips, 515 F.3d at 238. But the requirement of foreseeability "does not end the analysis." Henry v. City of Erie, 728 F.3d 275, 283 (3d Cir. 2013). To satisfy the "fairly direct" requirement, a plaintiff "must plausibly allege that state officials' actions 'precipitated or w[ere] the catalyst for' the harm for which the plaintiff brings suit." Id. at 285 (alterations in original). This first element, however, is not easily satisfied because "[s]tate actors are not liable every time their actions set into motion a chain of events that result in harm." Id. at 283. Nor is it satisfied if the connection between the state actor's actions and the incurred harm is "too attenuated . . . to support liability," Morse, 132 F.3d at 908, or is separated by intervening causes. Grau v. New Kensington-Arnold Sch. Dist., 429 F. App'x 169, 172 (3d Cir. 2011). When addressing the "fairly direct" requirement of the first element of a state-created danger claim, the Third Circuit in Grau held that the plaintiff's § 1983 claim failed because of multiple intervening causes that occurred between the defendant's alleged failure to act and the victim's ultimate death, including actions taken by the victim. Id. at 172-73; see also Henry, 728 F.3d at 285-86 ("[W]hen a victim bears some responsibility for the risks she has incurred, it is even more difficult to say that the 'state' has 'created' the 'danger' to her by its affirmative acts." (quoting Jones v. Reynolds, 438 F.3d 685, 694 (6th Cir. 2006))).
Here, to satisfy the first element of his state-created danger claim, Plaintiff's factual allegations must plausibly show that the harm he suffered was a "foreseeable and fairly direct" consequence of Defendants' actions. He has failed to do so. As stated, Plaintiff alleges that he broke his wrist while attempting to remove a frozen mound of snow that Defendants plowed into the entrance of his driveway the night before. Plaintiff contends that "it was obvious" that the mound of snow would freeze overnight, and that Plaintiff would have to remove the mound in order to access and/or leave his property. (See Am. Compl. ¶ 23). While Plaintiff is correct that it may have been foreseeable that Plaintiff's driveway, like the driveways of hundreds of other homeowners, would be snowed in as a result of snow plowing after the heavy snowfall, this observation is of no moment. It is "the harm ultimately caused" that must be foreseeable. Based upon the facts pled in the amended complaint, this Court opines that it was not foreseeable that Plaintiff would break his wrist while attempting to remove the frozen mound the next day. Further, Plaintiff's bald suggestion that Defendants were made aware of the general danger created by their actions is not "sufficiently concrete to put the [state] actors on notice of the harm" under the foreseeability requirement. Phillips, 515 F.3d at 238 (emphasis added). Notably, Plaintiff's request to have the mound of snow and ice moved because it posed a "danger" to him was only directed to Defendant Officer Badolato and not to all Defendants. Notwithstanding, even if Plaintiff had directed his request to all Defendants, Plaintiff's assertion that the mound was "dangerous" does not establish, as in Morse, that Defendants were aware of the harm, i.e., that Plaintiff would break his wrist while trying to remove the frozen mound of snow. As such, Plaintiff has failed to adequately plead facts to support the foreseeability requirement for a state-created danger claim.
Likewise, Plaintiff has also failed to allege facts to show that his injury was a "fairly direct" consequence of Defendants' actions. As alleged, following a heavy snowfall, Defendants plowed the mound of snow and ice from the street into the entrance of Plaintiff's driveway, and due to the very cold temperatures that night, the mound froze overnight. Sometime the next day, while attempting to remove the frozen mound of snow, Plaintiff fell and broke his wrist. Between the time that Defendants plowed the mound of snow and ice into the driveway and when Plaintiff broke his wrist, Defendants are not alleged to have done anything else. During this intervening time, however, several events independent of Defendants' actions occurred; to wit: freezing temperatures overnight and into the next day caused the mound of snow and ice to solidify and freeze; despite his awareness of the icy conditions, Plaintiff voluntarily decided to remove the frozen mound of snow from his driveway, presumably like countless other residents whose driveways were plowed in after the heavy snowfall; and Plaintiff's fall on the ice and breaking of his wrist. These intervening events, like those described in Grau, sever any connection between Defendants' actions and Plaintiff's ultimate injury or harm, making it "too attenuated" to support liability.
Notably, Plaintiff alleges that he fell a second time while climbing the mound of ice two days later, even though he had previously fallen and broken his wrist, and was aware of the icy conditions. (See Am. Compl. ¶ 14).
In addition, where a victim bears some of the responsibility for the harm incurred, Third Circuit precedent holds that a stated-created danger claim is more difficult to establish. Such are the facts in this case. Thus, when taking into consideration the intervening causes that occurred over the period of a day, including Plaintiff's own voluntary and independent action, the facts alleged do not establish the requisite "fairly direct" connection between Defendants' actions and Plaintiff's injury. To hold otherwise would allow state-created danger claims to be asserted anytime a state actor sets into motion a chain of events that result in harm, such as when a township authorized agent plows streets after snowfalls and blocks driveways. It is this Court's opinion that such a result is precluded by the aforementioned precedents. Thus, given the foregoing analysis, Plaintiff's factual allegations do not establish either requirement of the first element of a state-created danger exception; i.e., that Plaintiff's harm was "foreseeable and fairly direct" and, therefore, his § 1983 claim fails.
Defendants' Conduct Does Not Shock the Conscience
Notwithstanding, the second element of the state-created danger claim requires a plaintiff to sufficiently plead facts to establish that "a state actor acted with a degree of culpability that shocks the conscience." Bright, 443 F.3d at 281 (emphasis added). Generally, "the standard of culpability in substantive due process cases . . . is difficult to discern." Sanford v. Stiles, 456 F.3d 298, 305 (3d Cir. 2006). Practically speaking, "'the measure of what [action] is conscience shocking is no calibrated yard stick,' . . . . and has an 'elusive' quality to it." Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir. 2006). Yet, "the 'shocks the conscience' standard encompasses 'only the most egregious official conduct.'" United Artists Theater Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003) (quoting Lewis, 523 U.S. at 846). As such, "negligent behavior can never rise to the level of conscience shocking." Id. (citing Lewis, 523 U.S. at 849).
To better define the "shocks the conscience" standard, the Third Circuit established a "spectrum of culpable conduct." Kaucher, 455 F.3d at 426. "[T]he exact degree of wrongfulness necessary to reach the 'conscience-shocking' level depends upon the circumstances of a particular case." Id.; see also Rivas v. City of Passaic, 365 F.3d 181, 195 (3d Cir. 2004) (explaining that conscience-shocking conduct under one set of circumstances may not be conscience-shocking under different circumstances). Nonetheless, at one end of the spectrum is the deliberate indifference standard, which applies in situations when state actors have time to make "unhurried judgments." See, e.g., Kaucher, 455 F.3d at 426; Sanford, 456 F.3d at 306, 309. At the other end of the spectrum, in hyper-pressurized situations similar to a high-speed police car chase, "actions 'intended to [harm]' . . . are those 'most likely to rise to the conscience-shocking level.'" Kaucher, 455 F.3d at 426 (quoting Lewis, 523 U.S. at 849); Sanford, 456 F.3d at 309. For conduct that falls in the middle of this spectrum, where the "circumstances involv[e] something less urgent than a 'split-second' decision but more hurried than an 'unhurried judgment,'" the state actor must "consciously disregard a great risk of serious harm to [the victim]" for the conduct to shock the conscience. Sanford, 456 F.3d at 308-10 (quoting Rivas, 365 F.3d at 196). "[N]egligence is not enough to shock the conscience" under any standard in the "spectrum of culpable conduct." Schieber v. City of Phila., 320 F.3d 409, 419 (3d Cir. 2003).
Ordinarily, a court must initially determine the standard of culpability and then analyze whether a defendant's alleged behavior or actions were conscience-shocking under that standard. Based upon the facts pled, however, this Court finds that Defendants' alleged conduct does not shock the conscience under any standard in the "spectrum of culpable conduct," not even the lower standards of the spectrum, i.e., deliberate indifference and a "conscious disregard of a great risk of serious harm to the victim." Nevertheless, this Court will analyze Plaintiff's factual allegations under these two standards. See Kaucher, 455 F.3d at 426-27 ("[B]ecause we hold defendants' conduct was not even deliberately indifferent, we need not reach the question of whether a higher standard of culpability would be necessary to shock the conscience here.").
When addressing the lowest standard of conscience-shocking conduct, deliberate indifference, courts generally look to Nicini v. Morra, 212 F.3d 798, 801 (3d Cir. 2000) (en banc) for guidance. See, e.g., Kaucher, 455 F.3d at 427; Sanford, 456 F.3d at 307. In Nicini, the plaintiff, a fifteen-year-old male, refused to return home, because he claimed that his father physically abused him. Nicini, 212 F.3d at 801. He temporarily stayed with a different family, which his caseworker decided was a suitable foster family for the plaintiff after visiting the home and interviewing the family members. Id. at 802. The plaintiff later told investigators that the father of that family sexually abused him and gave him drugs and alcohol. Id. at 804. The plaintiff filed a § 1983 claim against the assigned caseworker alleging that the caseworker failed to fully and properly investigate the family. Id. The Court held that the caseworker's conduct amounted to, at most, negligence and not deliberate indifference. Id. at 812.
Similarly, in Sanford v. Stiles, 456 F.3d 298, 301 (3d Cir. 2006), the Court assessed both the deliberate indifference and "conscious disregard of a great risk of serious harm to the victim" standards of the "shocks the conscience" element. The case involved a high school student who passed an apologetic note to another student he previously dated after he heard stories that she was dating another student. Id. at 301. The note contained a statement that one of the stories "almost made [him] want to kill himself." Id. The recipient notified the guidance counselor who spoke to the student and determined that there was no indication that the student was suicidal and chose not to contact his mother or the school psychologist. Id. at 302. A week later, the student committed suicide. Id. The decedent's parents filed a § 1983 action alleging that the defendants were liable under the state-created danger exception. Id. at 303. The Court found that the guidance counselor's conduct did not shock the conscience under either standard. Id. at 311.
With these precedents in mind, this Court concludes that Defendants' conduct does not meet any iteration of the "shocks the conscience" standard. The facts alleged fall well below even the lowest standard on the "spectrum of culpable conduct" of deliberate indifference, and are a far cry from the egregious circumstances the Third Circuit analyzed as possible conscience-shocking conduct. If neither a caseworker's failure to investigate properly members of a potential foster family, which included a sexually abusive father, nor a guidance counselor's decision to not investigate further a student's expressed intent to commit suicide "shocks the conscience," then Defendants' action of plowing snow and ice into Plaintiff's driveway cannot be said to shock the conscience. To hold otherwise would allow any resident, whose driveway was plowed in by a township authorized entity following a heavy snowfall, to assert civil rights claims merely because that person falls while shoveling the driveway. This Court is of the opinion that such a result is precluded by the aforementioned precedents.
Even when viewing the facts in the light most favorable to Plaintiff, the facts do not plausibly show or even suggest conduct on the part of Defendants that a reasonable factfinder could conclude "shocks the conscience." Therefore, Plaintiff has failed to state a viable § 1983 claim.
While Defendants Lovitz and Springfield Towing argue that they are not state actors or were not acting under color of law, this issue need not be addressed because, as stated, Plaintiff has failed to allege facts in support of the first and second elements with regards to all Defendants in his § 1983 claim.
Defendant Officer Badolato
Defendant Officer Badolato argues that Plaintiff's claim against him also fails because Plaintiff has not sufficiently pled facts to establish the fourth element of a state-created danger claim. This Court agrees. To establish the fourth element, Plaintiff must allege facts showing that Defendant Officer Badolato: (1) exercised his authority, (2) took an affirmative action; and (3) that the affirmative action created a danger to Plaintiff or rendered him more vulnerable to danger than had Defendant not acted at all. See Ye, 484 F.3d at 639. "[I]t is [the] misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause." Bright, 443 F.3d at 282. In other words, "[l]iability under state-created danger theory is predicated upon the states' affirmative acts which work to the plaintiff's detriments in terms of exposure to danger." D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992).
In a recent decision, Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013), the Third Circuit rejected the plaintiff's state-created danger claim, because the facts pled did not establish that the defendant affirmatively acted. In Morrow, two sisters were subjected to a series of ongoing verbal threats and physical assaults by a fellow student. Id. at 164. In response, the school temporarily suspended the aggressor, and the juvenile court ordered the aggressor to have no contact with the victims. Id. Despite the court order and the suspension, the school district failed to keep the aggressor away from the victims, and the verbal and physical assault continued. Id. The school advised the victims' parents to relocate their children to another school and declined to remove the aggressor. Id. at 164-65. The victims brought § 1983 actions against the school for the alleged violations of the victims' due process rights, arguing that the defendant public school had a duty to protect them, because the school created or exacerbated a dangerous condition. Id. at 177. The Court held that the public school's alleged failure to use its disciplinary authority and to follow its own internal procedures were omissions, rather than actions, and were insufficient to establish that the state affirmatively used its authority to create a danger to the student. Id. at 177-19.
Like the plaintiffs in Morrow, Plaintiff in this matter has not pled any facts to establish that Defendant Officer Badolato affirmatively acted to place Plaintiff in danger or to render him more vulnerable to danger. For example, Plaintiff does not allege that Defendant Officer Badolato helped to physically plow the snow and ice into Plaintiff's driveway. At most, Plaintiff alleges that Defendant Officer Badolato "supervised the pushing of a large mound of snow and ice from the street into the entrance of Plaintiff's driveway." (See Am. Compl. ¶ 10) (emphasis added). Such conduct amounts to nothing more than an omission or failure to act, which is insufficient, under the governing case law in the Third Circuit, to attach liability to Defendant Officer Badolato. Absent allegations of affirmative conduct by Defendant Officer Badolato, Plaintiff has failed to allege sufficient facts to establish the fourth element of a state-created danger claim.
Plaintiff's § 1985(3) Claim
At Count Two of the complaint, Plaintiff asserts that Defendants conspired to deprive him of substantive due process rights in violation of § 1985(3). To assert a viable § 1985(3) claim, Plaintiff must allege, inter alia, that he was a "[m]ember[] of [the] protected class under § 1985(3) [and has] at least one of certain 'immutable characteristics.' These include race, gender, national origin, and mental handicap." McArdle v. Hufnagel, 588 F. App'x 118, 121 (3d Cir. 2014) (quoting Lake v. Arnold, 112 F.3d 682, 687 (3d Cir. 1997)). In addition, Plaintiff must assert that Defendants' actions were motivated by Plaintiff possessing one of these "immutable characteristics." Arnold, 112 F.3d at 685 (citing United Bhd. of Carpenters and Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)).
In their motions to dismiss, Defendants argue that Plaintiff failed to plead, inter alia, facts to support the second element of a § 1985(3) claim, i.e., that Defendants' actions were "motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws." Id. (emphasis added) (citing Scott, 463 U.S. at 828-29). This Court agrees. Plaintiff has not alleged any facts that would place him within one of these protected classes of persons. Such failure is detrimental to his claim. Therefore, this Court finds that Plaintiff's § 1985(3) claim lacks merit and is dismissed. See McCardle, 588 F. App'x at 121 (finding that the plaintiff's failure to establish the second element provided a proper basis to dismiss the § 1985 claim).
In Plaintiff's response to Defendant Springfield Towing's motion to dismiss, Plaintiff admits his failure to properly allege his § 1985 claim but seeks leave to amend his complaint in order to plead conspiracy pursuant to 42 U.S.C. § 1983 rather than § 1985. [ECF 19]. As discussed below, any such amendment would be futile; thus, Plaintiff's request for leave to amend is denied.
Leave to Amend
Although the Third Circuit has directed that a district court must ordinarily provide a civil rights plaintiff an opportunity to file an amended complaint where the original complaint is subject to dismissal under Rule 12(b)(6), see Phillips, 515 F.3d at 245 (reiterating the rule that leave to amend must be granted sua sponte in civil rights actions, "unless such an amendment would be inequitable or futile"), it is this Court's view that any such attempt to amend here would be legally futile. This Court dismissed Plaintiff's civil rights claims against Defendants because the facts set forth in his complaint fail, as a matter of law, to establish a constitutional violation of § 1983 claim under the state-created danger exception, or under § 1985(3). In addition, this Court cannot foresee any additional facts that could save Plaintiff's claims. Likewise, because a § 1983 conspiracy claim requires that a plaintiff show that "persons acting under color of state law conspired to deprive him of a federally protected right," an amendment would also be futile, because Plaintiff has failed to establish that he was deprived of his substantive due process rights. Perano v. Twp. of Tilden, 423 F. App'x 234, 239 (3d Cir. 2011) (citation omitted) (holding that the plaintiff failed to state a § 1983 conspiracy claim, because he failed to show that he was deprived of a federally protected right).
Plaintiff's Remaining State Law Claims
In Count Three, Plaintiff asserts state law claims against Defendants Lovitz and Springfield Towing, and relies upon supplemental jurisdiction to support this Court's jurisdiction over these state law claims. (See Am. Compl. ¶ 1). Because this Court has dismissed all of Plaintiff's federal claims over which it has original jurisdiction, pursuant to 28 U.S.C. § 1367, it declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("If the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999); Eberts v. Wert, 1993 WL 304111, at *5 (E.D. Pa. Aug. 9, 1993) ("Courts should ordinarily decline to exercise supplemental jurisdiction over state law claims when federal claims are dismissed.").
CONCLUSION
For the foregoing reasons stated herein, Defendants' motions to dismiss are granted, and Plaintiff's federal claims are dismissed. An Order consistent with this Memorandum Opinion follows. NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.