Opinion
Civil Action No. 03-840.
June 1, 2004
OPINION AND ORDER
I. Introduction
This action arises out of an incident in which Carolyn Simmons, then a minor, was sexually assaulted by a Municipal Guard at the Frankford Branch of the Free Library of Philadelphia. Simmons has sued the City of Philadelphia, and Free Library employees Eliot Shelkrot, Gloria Arrington, John Cunningham, Alan Harvey, Helen Miller and Pat Hoberg, asserting counts under 42 U.S.C. § 1983, as well as pendent state causes of action.
Defendants have now moved for summary judgment. For the reasons set forth below, their motion will be granted in part and denied in part.
II. Factual and Procedural Background
Simmons has alleged that, on September 16, 1998, when she was fifteen years old, Curtis Sharp, a guard at the Frankford Branch of the Free Library of Philadelphia, followed her to the downstairs restroom area of the library, seized her, and began kissing and fondling her. Complaint at ¶¶ 7, 16, 17. She further claims that when she and her eight-year old sister fled the library, Sharp followed them out and yelled to her that she should return in the evening and he would give her some money. Complaint at ¶ 20-21.
Sharp was arrested for this incident and charged with Indecent Assault and Corrupting the Morals of a Minor. Complaint at ¶ 24. However, he died during the prosecution of the matter. Id.
It emerged during the criminal investigation that Sharp had pled guilty to Indecent Assault and Corrupting the Morals of a Minor in 1991, in connection with an assault upon his fourteen-year-old niece. Complaint at ¶ 24.
On September 27, 1995, Sharp completed an employment application with the City of Philadelphia for the position of Municipal Guard. Form, attached to Simmons' Response as Exhibit I. He filled in or checked off answers to every question on the form but one: "Have you ever been convicted of any law violation . . . other than minor traffic offenses?." Id. This question he left blank. Nevertheless, Sharp was hired on October 14, 1995, and assigned to the Richmond branch of the Free Library. Employee History Record, attached to Simmons' Response as Exhibit J.
Several untoward incidents occurred during Sharp's time with the Richmond library. First, a librarian claimed that Sharp's "volatile outburst" during an altercation left her frightened, and unwilling to work alone with him. Memorandum from Margaret Bernardi, attached to Simmons' Response as Exhibit L. The next year, allegations were made that Sharp had tried to kiss a teen-aged girl, and made sexually inappropriate remarks to another girl. Memorandum from Matt Beatty, Library Supervisor, attached to Simmons' Response as Exhibit M. The month after the latter incident, Sharp was transferred to the Frankford Branch. Employment History Record, supra. It does not appear that any effort was made to look into Sharp's criminal history before the assault upon Simmons.
III. Legal Standards
Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must adduce more than a mere scintilla of evidence in its favor, and cannot simply reassert factually unsupported allegations contained in its pleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, supra at 325; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Nevertheless, Rule 56 "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra, at 323.
IV. Discussion
A. Undisputed Portions of the Motion
In her response to Defendants' motion for summary judgment, Simmons has agreed to the dismissal of individuals Shelkrot, Cunningham, Harvey, Miller and Hoberg, on the basis that they were added after the running of the statute of limitations. Moreover, Simmons has stated her intention to proceed under her § 1983 claims only, and not on her state causes of action. Of course, summary judgment will be granted in favor of the Defendants in these two respects.
B. Simmons' § 1983 Action
1. The Claim Against Gloria Arrington
To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate (a) a violation of a right secured by the Constitution and the laws of the United States and that (b) the alleged deprivation was committed by a person acting under color of state law. Mark v. Borough of Hatboro, 51, F.3d 1137, 1141 (3d Cir. 1995).
Defendants claim that Simmons cannot show that the deprivation of her rights was committed by a person acting under color of state law, because Sharp's criminal actions were not related to the performance of his duties, even though they may have been committed at the workplace.
This, however, is besides the point. As Defendants themselves point out, Sharp is not a defendant in this case. The behavior criticized here is that of Arrington, for placing a convicted pedophile in charge of providing security for teen-aged girls. Arrington's acts and failures to act were taken under color of state law, and are therefore the proper subject for a § 1983 action.
Defendants also allege that Simmons cannot establish that a right secured by the constitution has been violated. However, it appears that Simmons has set forth facts adequate to support her claim that Arrington violated her 14th Amendment Due Process rights to be free from criminal acts by a third party under a "state-created danger" theory.
In order to recover on the theory of a state-created danger, Simmons must show that (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in a willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (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.Schieber v. City of Philadelphia, 320 F.3d 409, 417 (3d Cir. 2003); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996).
Simmons is entitled to argue to the jury that Curtis's molestation of a teen-aged girl was a foreseeable and fairly direct result of his employment in the position of guard at the Frankford library, supervising a population containing many teen-aged girls, given his history of criminal sexual conduct of that nature, and his history at the Richmond library. The fact (if proven) that Arrington did nothing to explore Sharp's failure to advise the City that he had a prior criminal record, combined with her knowledge that Sharp was alleged to have acted inappropriately with girls at the Richmond library, could support an argument that Arrington acted in willful disregard of this risk. The foregoing could also support an argument that Arrington used her authority to create an opportunity that otherwise would not have existed for Sharp to assault Simmons, particularly given the testimony of Patricia Hoberg, at the Frankford library, that she was told Sharp would be "a guard that would really be able to help . . . manage . . . kids after school." Excerpt of Hoberg Deposition Testimony, attached to Simmons' response as Exhibit Q.
As to the required "relationship" between Arrington and Simmons, it should be noted that a custodial relationship is not required here, as it is in a "special relationship" theory of liability. All that is required is that there was contact between the parties such that the plaintiff was a foreseeable victim in the tort sense. Brown v. Pennsylvania Department of Health Emergency Medical Services Training Institute, 318 F.3d 473, 479 (3d Cir. 2003). The theory is that, by hiring for a guard a sexual offender who preyed upon young girls, Simmons was placed in a position worse than if no guard had been hired. See, DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 201 (1989).
Obviously, factual issues exist as to Arrington's knowledge, responsibilities and actions. Nevertheless, because Simmons has alleged facts sufficient to show liability under the theory of "state-created danger", I find that these disputed facts preclude the entry of summary judgment.
Simmons also alleges liability on the basis of a "special relationship" theory under DeShaney, on the basis that she was in the custody of the Department of Human Services at the time of Sharp's assault. However, because I find that her custody in this sense was wholly unconnected the facts of this case, I will dismiss this claim.
2. The Action Against the City of Philadelphia
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the United States Supreme Court concluded that liability under § 1983 of a governmental entity may not be founded upon the doctrine of respondeat superior, but, rather, only upon evidence that the governmental unit itself supported a violation of constitutional rights. 436 U.S. at 691-95. Hence, a municipality may only be found liable when "the alleged constitutional transgression implements or executes a policy . . . officially adopted by the governing body or informally adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), explaining Monell.
The act of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, where the policymaker has failed to act affirmatively at all, though the need to take some action "is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need." Board of Commissioners of Bryan County v. Brown, 520 U.S. 397, 418 (1997), quoting Canton v. Harris, 489 U.S. 378, 390 (1989), and see Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003).
Thus, if Simmons can prove that the City's failure to consider omissions on its own Employment Application forms, and/or its failure to run independent checks on applicants' criminal backgrounds, and/or its failure to have a policy of taking employees accused of sexual improprieties out of contact with youth, constitutes a failure to act where a need to act is obvious, she will have proved that the City can be held liable under Monell.
It is a very close call whether Simmons has come forward with sufficient facts in support of these allegations to survive Defendants' motion for summary judgment. I will make that call in favor of Simmons, and I will not dismiss her Monell claim at this point. I will, of course, entertain an appropriate Motion for Judgment as a Matter of Law pursuant to Fed.R.Civ.Pr. 50, if, at the close of Simmons' case, the basis of this claim is not adequately supported.
V. Conclusion
For the reasons set forth above, I will enter the following:
ORDER
AND NOW, this day of June, 2004, upon consideration of Defendants' Motion for Summary Judgment and Simmons' Response thereto, it is hereby ORDERED that Defendants' Motion is GRANTED IN PART and DENIED IN PART.
It is GRANTED in the following respects:
1. Simmons' state law claims are DISMISSED;
2. Individuals Shelkrot, Cunningham, Harvey, Miller and Hoberg are DISMISSED as Defendants in this case;
3. Simmons' claim of liability under 42 U.S.C. § 1983 on the basis of a special relationship is DISMISSED.
Defendants' Motion is otherwise DENIED.