                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2009

Estate of Omayra Sob v. City of Jersey City
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1889




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"Estate of Omayra Sob v. City of Jersey City" (2009). 2009 Decisions. Paper 1181.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1181


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                                                       NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT




                              No. 08-1889


           ESTATE OF OMAYRA SOBERAL, DECEASED;
    RAFAEL SOBERAL, INDIVIDUALLY AND AS ADMINISTRATOR
    AD PROSEQUENDUM OF THE ESTATE OF OMAYRA SOBERAL;
      GIOVANNI ALBERTO GERMOSEN; WILLIAM GONZALEZ

                                   v.

     CITY OF JERSEY CITY; JERSEY CITY POLICE DEPARTMENT;
JAMES CARTER, POLICE DIRECTOR; PETER BEHRENS, CHIEF OF POLICE;
       YOUNGER, SGT.; ESTATE OF JULIO REYES, DECEASED;
             HUDSON COUNTY PROSECUTOR'S OFFICE;
       EDWARD J. DEFAZIO, HUDSON COUNTY PROSECUTOR;
               JOHN DOES 1-25 AND JANE DOES 1-5;
        PATROL OFFICER JOHN BACIGALUPO; JAMES BLAKE;
     LIEUTENANT PAT NALBACH; INSPECTOR PAUL WALLEON,

                                 Pat Nalbach, Paul Walleon and Fred Younger,

                                                    Appellants.


             On Appeal from the United States District Court
                     for the District of New Jersey
                      ( D. C. No. 3-04-cv-02788 )
                  District Judge: Hon. Joel A. Pisano


                        Argued on May 11, 2009
               Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges

                             (Opinion filed: June 16, 2009)

Robert E. Levy, Esquire (Argued)
Michael A. Cifelli, Esquire
Laura M. Miller, Esquire
Scarinci & Hollenbeck, LLC
1100 Valley Brook Avenue
Lyndhurst, NJ 07071

                    Counsel for Appellants


John S. Furlong, Esquire (Argued)
Furlong & Krasny
820 Bear Tavern Road
Mountain View Office Park, Suite 304
West Trenton, NJ 08628

                    Counsel for Appellees




                                     OPINION


ROTH, Circuit Judge:

      Appellants—Lieutenant Pat Nalbach, Inspector Paul Wolleon, and Sergeant Fred

Younger—appeal from the portion of the order of the District Court denying summary

judgment based on their assertion of qualified immunity in an action brought by




       *Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.

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Appellees—the Estate of Omayra Soberal, et al. Because the parties are familiar with the

tragic facts, we will describe them only as necessary to explain our decision. For the

reasons discussed below, we will vacate that portion of the order of the District Court and

remand this case to the District Court.

       Under the collateral-order doctrine, we have jurisdiction over this interlocutory

appeal of the portion of the District Court’s order denying summary judgment based on

qualified immunity. See Burella v. City of Phila., 501 F.3d 134, 139 (3d Cir. 2007). This

Court’s jurisdiction, however, is limited to determining “‘whether the set of facts

identified by the district court is sufficient to establish a violation of clearly established

constitutional right.’” Rivas v. City of Passaic, 365 F.3d 181, 192 (3d Cir. 2004) (quoting

Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir. 2002)). We exercise plenary review

over the District Court’s denial of summary judgment and assess the record using the

same standard that guided the District Court. E.g., Rivas, 365 F.3d at 193.

       Appellants asserted qualified immunity to defend the Estate’s claim that they

violated Omayra Soberal’s Fourteenth Amendment substantive due process right to be

free from state-created danger. The doctrine of qualified immunity protects government

officials “from civil liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Normally, the first step

in the qualified-immunity analysis is to determine “whether the facts that a plaintiff has



                                                3
alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson v.

Callahan, – U.S. –, 129 S. Ct. 808, 816 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). “Second, if the plaintiff has satisfied this first step, the court must decide

whether the right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” Id.

       The Estate’s claim fails step one—the facts do not show that Appellants violated

Soberal’s right to be free from state-created danger. The state-created danger doctrine is

“an exception to the rule 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.’”

Walter v. Pike County, Pa., 544 F.3d 182, 192 (3d Cir. 2008) (quoting DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)). A plaintiff must

satisfy four elements for a successful state-created danger claim:

       (1) the harm ultimately caused was foreseeable and fairly direct;
       (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.

E.g., Walter, 544 F.3d at 192 (quoting Bright v. Westmoreland County, 443 F.3d 276, 281

(3d Cir. 2006)). To satisfy the fourth element, we require a plaintiff to (1) show that a



                                               4
state official affirmatively acted to the plaintiff’s detriment and (2) establish direct

causation between the affirmative act and the result. See Phillips v. County of Allegheny,

515 F.3d 224, 236–37 (3d Cir. 2008); Kaucher v. County of Bucks, 455 F.3d 418, 432 (3d

Cir. 2006).

        The Estate argues that Nalbach engaged in one affirmative act and that both

Wolleon and Younger engaged in two. None of the Appellants, however, affirmatively

acted to Soberal’s detriment. Nalbach did not affirmatively act to her detriment when he

instructed Officer Julio Reyes to stay away from her. Nalbach’s act did not make Soberal

“more vulnerable to danger.” See Bright, 443 F.3d at 281. Similarly, neither Wolleon nor

Younger affirmatively acted to Soberal’s detriment when they instructed Reyes to remain

downstairs, away from her. Appellants, moreover, did not affirmatively act by not

attempting to disarm Reyes until Soberal left the building: “We have squarely held that

‘failing to more expeditiously seek someone’s detention,’ and failing to arrest someone

who poses a threat, are not themselves affirmative uses of authority . . ..” Walter, 544

F.3d at 194 (quoting Bright, 443 F.3d at 284)). The Estate’s remaining arguments involve

Younger walking Soberal downstairs to meet police officers who were to drive her home.

Wolleon affirmatively acted, according to the Estate, by instructing Younger to walk

Soberal downstairs without knowing where Reyes was. But failing to locate Reyes was

inaction, which is not an affirmative act. See Walter, 544 F.3d at 194. The Estate’s

argument concerning Younger fails because Younger did not act to Soberal’s detriment



                                               5
by escorting her to officers who were to drive her home—away from Reyes.

       The District Court erred in denying summary judgment based on qualified

immunity for Nalbach, Wolleon, and Younger. Accordingly, we will vacate the portion

of the order of the District Court denying Appellants’ motion for summary judgment and

remand this case to the District Court with instructions to enter judgment in their favor on

the Estate’s 42 U.S.C. § 1983 claims.




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