Opinion
3:23-cv-120-KRG-KAP
06-13-2023
CARLTON S. ESTES, Plaintiff v. HOUSING AUTHORITY, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Plaintiff's complaint should be dismissed without leave to amend, without prejudice to proceeding in state court on any tort claim plaintiff might have.
Report
Plaintiff Estes is a pretrial detainee facing charges in Clearfield County and Crawford County. As such, his complaint is subject to the Prison Litigation Reform Act, 28 U.S.C. § 1915(a)(2), (b)(1)-(2). For plaintiffs proceeding in forma pauperis, 28 U.S.C.§ 1915(e)(2) commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
Also applicable is 28 U.S.C.§ 1915A, which commands that:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Plaintiff alleges that on a Saturday, either March 12 or March 19, 2022, he was in an elevator on his way to visit a friend at a property in the City of Dubois owned by the defendant Housing Authority when without warning five persons rushed into the building and assaulted and robbed him in the elevator. Plaintiff was taken to the emergency room. The following Monday plaintiff reviewed camera footage with an employee who appears to be named as defendant John Doe. John Doe expressed his sympathy. Nothing further has been done to prosecute the plaintiff's assailants.
Plaintiff bases his claim for damages on the assertion that there were no guards on active duty to prevent nonresidents or persons without a security card from entering the building. He characterizes this as “pure negligence.” But it is well settled that where a government official is merely negligent in causing injury to life, liberty, or property, there is no violation of the injured person's civil rights. Davidson v. Cannon, 474 U.S. 344, 347 (1986)
Government entities, whether they operate apartment buildings or police departments, are not constitutionally required to provide protective services, and there is no liability for failure to provide such services, even if it would have prevented the private injury from occurring. See Brown v. Commonwealth of Pennsylvania, Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003). A governmental entity cannot deliberately harm a private citizen or engage in behavior that shocks the conscience, Searles v. SEPTA, 990 F.2d 789, 791-92 (3d Cir. 1993), but where the government entity does not create the danger (as for example by confining a person in prison with his assailant), the failure to protect an individual against private violence does not violate any federal right. Failure to take additional safety measures simply cannot be recharacterized as the sort of affirmative conduct necessary for a federal claim.
John Doe and the Housing Authority's failure to pursue the assailants does not give plaintiff a cause of action, either: a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and other cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” Plaintiff may have a cause of action under state law, but he alleges no facts that would support federal jurisdiction, and allowing amendment is inequitable where there is no reasonable probability that there are such facts that plaintiff simply failed to allege. Nor is there any reason to retain a potential state law claim when no federal questions remain.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).