                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2006

Bright v. Westmoreland
Precedential or Non-Precedential: Precedential

Docket No. 05-2005




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1194


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                                            PRECEDENTIAL


            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 05-2005


    JOHN BRIGHT, Individually and in his capacity as
  Administrator of the ESTATE OF ANNETTE BRIGHT,
                         deceased,
                               Appellant

                              v.

     WESTMORELAND COUNTY; TAMI WHALEN,
             Individually and in her capacity as a
   Probation Officer for Westmoreland County; RICHARD
   YESKO, Individually and in his capacity as a Probation
 Officer for Westmoreland County; ANTHONY C. GUINTA,
 Individually and in his capacity as Probation Supervisor for
   Westmoreland County; CITY OF MONESSEN; CARL
 FRANZAGLIO, Individually and in his capacity as a Police
     Officer for the City of Monessen; PAUL S. KUNTZ,
Individually and in his capacity as Court Administrator for the
   Westmoreland County Court of Common Pleas; JOHN
PECK, Individually and in his capacity as District Attorney of
       Westmoreland County; CHARLES KOSCHALK
      On Appeal From the United States District Court
         For the Western District of Pennsylvania
           (D.C. Civil Action No. 03-cv-01072)
          District Judge: Hon. Arthur J. Schwab


                Argued October 19, 2005

    BEFORE: SMITH, STAPLETON and NYGAARD,
                  Circuit Judges

              (Opinion Filed April 4, 2006)




Peter M. Suwak (Argued)
P.O. Box 1
Pete’s Surplus Building
Washington, PA 15301
Attorney for Appellant

Thomas P. Pellis (Argued)
Meyer, Darragh, Buckler, Bebenek & Eck
114 South Main Street
Greensburg, PA 15601
 Attorney for Appellees Westmoreland
 County, Tami Whalen, Richard Yesko,
 Anthony C. Guinta and John Peck



                            2
Thomas P. McGinnis (Argued)
Thomas, Thomas & Hafer
301 Grant Street
One Oxford Centre - Suite 1150
Pittsburgh, PA 15219
Attorney for Appellees City Of Monessen,
and Carl Franzaglio

Mary E. Butler (Argued)
Supreme Court of Pennsylvania
Administrative Office of PA Courts
1515 Market Street - Suite 1414
Philadelphia, PA 19102
Attorney for Appellee
Paul S. Kuntz



                 OPINION OF THE COURT




STAPLETON, Circuit Judge:

        John Bright, on behalf of himself and his daughter
Annette’s estate, appeals from an order dismissing his
complaint for failure to state a claim. That complaint purports
to allege a Substantive Due Process claim under the “state-
created danger doctrine” and several state law claims. For
present purposes, we accept the facts alleged in Bright’s

                              3
complaint as true. Based on those facts, we will affirm the
judgment of the District Court.

                              I.

        Thirty-four-year-old defendant Charles Koschalk
(“Koschalk”) pled guilty to a charge of corrupting the morals
of a twelve-year-old girl, Annette Bright’s sister. He was
sentenced to 23 months of probation. As conditions of his
probation, he was to have no contact with his 12-year-old
victim and no unsupervised contact with any other minor. On
probation, Koschalk was under the supervision of
Westmoreland County Adult Probation Department and three
of its employees – defendants Tami Whalen, Richard Yesko,
and Anthony Guinta. During his probation, Koschalk
continuously violated his parole by attempting to carry on a
relationship with the 12-year-old victim of his crime.

       The complaint alleges the following with respect to
one of those probation violations and the ensuing
proceedings:

              16. On or about MAY 4, 2001, AT
      20:09 hrs, Defendant Probation Officer Tami
      Whelan personally observed and confronted
      Defendant Koschalk with the twelve year old
      victim, unsupervised, at the Target Store in
      Greensburg. The probation officer considered
      this a direct violation of the Court Order.

             17. Defendant Probation Officer Whelan

                              4
      prepared a report in support of a violation
      petition on or about May 16, 2001.

             18. On or about June 15, 2001, a formal
      violation document alleging the above
      unauthorized contact was signed by Probation
      Officer Richard Yesko for Probation Officer
      Whelan.

             19. On or about June 18, 2001,
      Probation Supervisor Anthony C. Guinta signed
      the violation document requesting that a final
      revocation hearing be scheduled for Defendant
      Koschalk.

              20. On or about June 27, 2001, a Petition
      to Revoke Defendant Koschalk’s probation was
      filed through Defendant District Attorney’s
      office by and through an assistant district
      attorney.

             21. On or about August 6, 2001, the
      Westmoreland County Court Administrator’s
      Office issued a notice that a hearing on the
      Petition for Revocation was scheduled for
      August 28, 2001 before the Honorable William
      J. Ober of the Court of Common Pleas of
      Westmoreland County.

First Amended Complaint, App. at 54a-55a.



                              5
        In late June, 2001, Bright called defendant Officer Carl
Franzaglio of the City of Monessen Police Department to ask
him to arrest Koschalk. Officer Franzaglio had some
familiarity with the case because he was the prosecuting
officer in the proceeding against Koschalk stemming from his
crime against the 12-year-old. After Bright described the
situation, Officer Franzaglio assured Bright that immediate
action would be taken, but no detention of Koschalk occurred.


       On July 15, 2001, before his probation revocation
hearing was scheduled, Koschalk shot and killed Annette
Bright, the eight-year-old sister of the victim of his earlier
crime. Koschalk murdered Annette Bright to retaliate against
the family for its efforts to prevent him from seeing the 12-
year-old victim.

       Bright’s complaint concludes its statement of a claim
under 42 U.S.C. § 1983 with the following allegations:

       The aforementioned acts, coupled with the
       inexplicable delay of nearly ten weeks in
       processing the revocation petition and/or the
       failure to initiate arrest and/or detention in the
       face of known probation violations . . .
       constituted a state-created danger . . . . The
       homicide was directly and proximately caused
       by the affirmative acts and/or the deliberate
       indifference and/or failure to enforce, despite
       actual knowledge, the court-ordered conditions
       of probation. Further, the effect of direct

                                6
       confrontation with Koschalk, coupled with the
       aforementioned inexplicable delay emboldened
       Koschalk into believing that he would not
       confront effective law enforcement action as he
       progressed with his scheme to retaliate against
       the Bright family.

First Amended Complaint at ¶¶ 30(h), 31, App. at 58a.

        In addition to the violation of Annette Bright’s federal
civil rights, Bright’s complaint also alleges state law wrongful
death and survival claims against all of the defendants and
assault and battery claims against Koschalk.

        The District Court granted the defendant’s Rule
12(b)(6) motion to dismiss the § 1983 state-created danger
claims. It concluded that these claims “must fail . . . because
the state actors did not use their authority to create an
opportunity for harm that would not otherwise have existed.”
District Ct. Op., App. at 13a-14a. The District Court also
dismissed Bright’s state law claims against the state-actor
defendants on the ground that they were entitled to immunity
under the Pennsylvania Political Subdivision Tort Claims Act,
42 Pa. Cons. Stat. § 8541, et seq. (“PPSTCA”). Finally, the
District Court declined to exercise supplemental jurisdiction
over the state law claims against Koschalk. This timely
appeal followed.

                              II.

       We begin our evaluation of Bright’s “state-created

                               7
danger” claim with a review of the Supreme Court’s decision
in DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S.
189 (1989). Joshua DeShaney was physically abused by his
father. The respondents, social workers and local officials,
had ample reason to believe Joshua’s father was abusing him
and, at one point, secured temporary custody of Joshua. They
ultimately returned Joshua to his father, however, and the
violence continued, resulting in severe brain damage. Joshua
and his mother “sued respondents claiming that their failure to
act deprived [Joshua] of his liberty in violation of the Due
Process Clause of the Fourteenth Amendment.” Id. at 191.
The Supreme Court held that it did not, and affirmed a
summary judgment for the respondents.

       Based upon its text, history, and case law, the Court
concluded that the Due Process Clause did not impose an
affirmative obligation on the state to protect its citizens:

       The Clause is phrased as a limitation on the
       State’s power to act, not as a guarantee of
       certain minimal levels of safety and security. It
       forbids the State itself to deprive individuals of
       life, liberty, or property without “due process of
       law,” but its language 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. Nor does history
       support such an expansive reading of the
       constitutional text.

                             ***

                               8
       Its purpose was to protect the people from the
       State, not to ensure that the State protected them
       from each other.

                             ***

              Consistent with these principles, our
       cases have recognized 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.

DeShaney, 489 U.S. at 195-96.

       Significantly for present purposes, the petitioners in
DeShaney contended that, even if there was no affirmative
duty to protect the public generally, “a special relationship”
existed between Joshua and the state giving rise to such a duty
“because the State knew that Joshua faced a special danger of
abuse at his father’s hands, and specifically proclaimed, by
word and by deed, its intention to protect him against that
danger.” DeShaney, 489 U.S. at 197. The Supreme Court
expressly “reject[ed] this argument.” Id. at 198. It held that it
is only when the state takes custody of a citizen, thereby
depriving him of his liberty, that it assumes an affirmative
duty to protect him or her from harm.

       [Our cases] stand only for the proposition that
       when the State takes a person into its custody

                               9
       and holds him there against his will, the
       Constitution imposes upon it a corresponding
       duty to assume some responsibility for his
       safety and general well-being. . . . The
       affirmative duty to protect arises not from the
       State’s knowledge of the individual’s
       predicament or from its expressions of intent to
       help him, but from the limitation which it has
       imposed on his freedom to act on his own
       behalf.

Id. at 199-200.

       Applying these principles to Joshua’s case, the Court
concluded that the state had no duty to protect him even
though state actors had, at one point, taken temporary custody
of Joshua and then returned him to his father:

       Petitioners concede that the harms Joshua
       suffered occurred not while he was in the
       State’s custody, but while he was in the custody
       of his natural father, who was in no sense a state
       actor. While the State may have been aware of
       the dangers that Joshua faced in the free world,
       it played no part in their creation, nor did it do
       anything to render him any more vulnerable to
       them. That the State once took temporary
       custody of Joshua does not alter the analysis, for
       when it returned him to his father’s custody, it
       placed him in no worse position than that in
       which he would have been had it not acted at

                              10
         all; the State does not become the permanent
         guarantor of an individual’s safety by having
         once offered him shelter.

DeShaney, 498 U.S. at 201 (footnote omitted).

       DeShaney stands for the proposition that the Due
Process Clause imposes no affirmative duty to protect a
citizen who is not in state custody.1 As the last quoted
paragraph suggests, however, this does not mean that no
constitutional violation can occur when state authority is
affirmatively employed in a manner that injures a citizen or
renders him “more vulnerable to injury from another source
than he or she would have been in the absence of state
intervention.” Scheiber v. City of Philadelphia, 320 F.3d 409,
416 (3d Cir. 2003). This complement to the DeShaney
holding has come to be known in its progeny as the “state-
created danger doctrine.”

      Our case law establishes the following essential
elements of a meritorious “state-created danger” claim:

         (1) “the harm ultimately caused was foreseeable
         and fairly direct;”2


  1
    Bright does not invoke the “state custody” exception to the
general rule of DeShaney. Compare Nicini v. Morra, 212 F.3d
798 (3d Cir. 2000) (holding that an affirmative duty to protect
may exist in the context of foster care).
   2
       Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996).
                               11
          (2) a state actor acted with a degree of
          culpability that shocks the conscience;3

          (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;4 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.5


      3
      County of Sacramento v. Lewis, 523 U.S. 833 (1998);
Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (1999);
Scheiber v. City of Philadelphia, 320 F.3d 409, 416 (2003).
  4
    Kneipp, 95 F.3d at 1209, n.22; Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906, 913 (3d Cir. 1997).
  5
    See DeShaney, 489 U.S. at 201 (“While the State may have
been aware of the dangers that Joshua faced in the free world, it
played no part in their creation, nor did it do anything to render
him any more vulnerable to them. . . . [The State] placed him in
no worse position than that in which he would have been had it
not acted at all”); Rivas v. City of Passaic, 365 F.3d 181, 195
(3d Cir. 2004) (articulating the fourth element as requiring that
                                 12
        It is important to stress, for present purposes, that
under the fourth element of a state-created danger claim,
“[l]iability under the state-created danger theory is predicated
upon the states’ affirmative acts which work to the plaintiffs’
detriments in terms of exposure to danger.” D.R. by L.R. v.
Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1374
(3d Cir. 1992) (en banc) (emphasis supplied); Brown v.
Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. 1990) (finding
that DeShaney holds “that a state’s failure to take affirmative
action to protect a victim from the actions of a third party will
not, in the absence of a custodial relationship . . . support a
civil rights claim”). It is misuse of state authority, rather than
a failure to use it, that can violate the Due Process Clause.

       While we have acknowledged that the line between
action and inaction may not always be clear, D.R., 972 F.2d at
1374, we have never found a state-created danger claim to be
meritorious without an allegation and subsequent showing




“the state actor used his authority to create an opportunity for
danger that otherwise would not have existed”). See also Laura
Oren, Safari into the Snake Pit: The State Created Danger
Doctrine, 13 Wm. & Mary Bill Rts. J. 1165, 1187 (2005)
(arguing that this element in our Circuit’s state-created danger
doctrine “may be broken down into its constituent parts: (1) Did
state officials exercise authority or power; (2) in such a way that
they put someone in a worse position than they would otherwise
have occupied?”).
                                13
that state authority was affirmatively exercised.6 Contrary to
Bright’s suggestion, Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.

   6
     If there were any inconsistency in the holdings of our prior
cases regarding the fourth element of a state-created danger
claim, the controlling precedent would be our en banc decision
in D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d
1364 (3d Cir. 1992). While acknowledging that the line
between action and inaction is sometimes difficult to draw, we
there affirmed what DeShaney clearly teaches: the Due Process
Clause proscribes only state action and, accordingly, liability
“under the state-created danger theory [can only] be predicated
upon the state’s affirmative acts which work to plaintiffs’
detriment in terms of exposure to danger.” 972 F.2d at 1374.
We perceive no conflict, however, between D.R. and those cases
which phrase the fourth element in terms of whether “state
actors used their authority to create an opportunity that would
not otherwise have existed” for injury to the plaintiff. Mark v.
Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). In our
view, “state actors” cannot “use their authority” to create such
an opportunity by failing to act. Rivas is not to the contrary.
There, two state actors, emergency medical technicians,
affirmatively used their state authority to create an opportunity
for injury to the plaintiff by summoning the police and
providing them with information that could be expected to cause
the police to treat the plaintiff’s decedent in a highly dangerous
manner – i.e., “Garcia and Rodriguez informed the police that
Mr. Rivas had assaulted one of them but did not inform the
police about Mr. Rivas’s medical condition or warn the officers
that Mr. Rivas should not be restrained.” 365 F.3d at 195. We
perceive little similarity between that case and this.
                               14
1996), and Morse v. Lower Merion Sch. Dist., 132 F.3d 902
(3d Cir 1997), do not indicate otherwise. In Kneipp, the
police stopped a couple on the street in the middle of the night
for causing a disturbance. The wife was intoxicated to the
point of being unable to walk without assistance. While the
police initially detained both of them, they subsequently gave
the husband permission to go home. He departed, assuming
that the police were going to take her either to the hospital or
the police station. At some point after his departure, the
police sent the wife home alone, resulting in her fall to the
bottom of an embankment and serious injury. We affirmed,
finding that there was “sufficient evidence in the summary
judgment record to show that . . . the police officers used their
authority as police officers to create a dangerous situation or
to make [the wife] more vulnerable to danger [than] had they
not intervened. . . . As a result of the affirmative acts of the
police officers, the danger or risk of injury to [the wife] was
greatly increased.” Kneipp, 95 F.3d at 1209.

        In Morse, we characterized the issue raised under the
fourth element of a state- created danger claim as whether
“the state actors ‘used their authority to create an opportunity
that otherwise would not have existed for the third party’s
crime to occur.’” Morse, 132 F.3d at 915 (quoting from
Marks v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.
1995)). We affirmed the District Court’s dismissal of the
complaint, however, based on the plaintiff’s failure to satisfy
the first element of a state-created danger claim, i.e., on the
facts alleged, the third parties’ “deadly attack was not a
foreseeable and fairly direct result of defendants’ behavior.”



                               15
Id. at 915-16.7

    7
      As the dissent notes, Morse observes: “the dispositive
factor appears to be whether the state has in some way placed
the plaintiff in a dangerous position that was foreseeable, and
not whether the act was more appropriately characterized as an
affirmative act or an omission.” Morse, 132 F.3d at 915. It is
important to put this observation in context, however. This
sentence appears in Morse’s discussion of the district court’s
application of the fourth element of the test. The district court
identified a single alleged affirmative act—the defendants
having unlocked the back door to a school through which the
plaintiff’s attacker entered—and expressed uncertainty as to
whether this affirmative act was sufficient to establish liability.
We concluded the question of whether an affirmative act was
required had been answered by Mark v. Borough of Hatboro.
Mark articulated the fourth element of the test as requiring that
“state actors used their authority to create an opportunity that
otherwise would not have existed for the third party’s crime to
occur.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d
Cir. 1995). A use of authority that creates an opportunity for
harm necessarily entails an affirmative act. But an affirmative
act, while necessary, is not sufficient. The test also requires a
direct causal relationship between the affirmative act and
foreseeable harm to the plaintiff. In Morse, this meant asking
whether unlocking the door created a foreseeable opportunity
for the plaintiff to be attacked by a mentally ill intruder. Only
then would the state actor have “used its authority to create an
opportunity which otherwise would not have existed for the
specific harm to occur.” Morse,132 F.3d at 914. In this context,
we do not read Morse’s language to suggest liability can be
                               16
                               III.

       Bright insists that the state actor-defendants caused
Annette Bright’s death in three ways: (1) the “inexplicable
delay” by numerous state actors in pursuing the revocation of
Koschalk’s parole left him in a position to kill Annette; (2)
Officer Franzaglio’s assurance that Koschalk would be taken
into custody was relied upon by Bright and resulted in
Bright’s failing to take steps to protect Annette; and (3)
Officer Whalen’s confrontation of Koschalk in May and the
want of any prompt follow-up by the state actors
“emboldened” him to commit a crime he otherwise would not
have committed. Like the District Court, we find it
unnecessary to consider anything other than the fourth
essential element of a meritorious state-created danger claim.8


based on an omission alone or a failure to act. We read it to
clarify that the relevant test involves asking whether a state
actor’s behavior constituted an affirmative act, and, if so,
whether the affirmative act created a foreseeable opportunity for
harm.
  8
    Judge Smith would hold that the motion to dismiss was also
properly granted based on Bright’s failure to plead facts
sufficient to satisfy the first prong of the state-created danger
test. In his view, the harm ultimately caused was a not
“foreseeable and a fairly direct result of the state’s actions.”
Morse, 132 F.3d at 908. Because the crime of corrupting the
morals of a minor is different in degree and kind from the crime
of murder, it is not – without more – foreseeable to a state actor
that failing to detain a pedophile will result in homicide. In
                               17
We conclude that the state cannot “create danger” giving rise
to substantive due process liability by failing to more
expeditiously seek someone’s detention, by expressing an
intention to seek such detention without doing so, or by taking
note of a probation violation without taking steps to promptly
secure the revocation of the probationer’s probation.

                                A.

        Bright argues that this case is unique because “the
probation officer personally witnessed the offending violation
and was in a position to act promptly,” but there was an
“inexplicable delay” of ten weeks before a probation
revocation hearing was scheduled. Br. Appellant at 26. This
theory of liability based solely on a failure of the state to act is
clearly foreclosed by DeShaney. Even if Officer Whalen’s
knowledge of the encounter at Target could be reasonably
regarded as knowledge of a danger to Annette, we know from
DeShaney that no affirmative duty to protect arises “from the
State’s knowledge of the individual’s predicament.”
DeShaney, 489 U.S. at 200. Liability requires affirmative
state action; mere “failure to protect an individual against
private violence” does not violate the Due Process Clause. Id.
at 197.

                                B.


Judge Smith’s view, because Bright failed to allege that state
officials had any knowledge of any threatening or criminal
conduct except the probation violation itself, Annette Bright’s
murder was not a foreseeable result of the state’s action.
                                18
        Officer Franzaglio assured Bright approximately three
weeks before Annette’s death that Koschalk would be arrested
and “[i]n reliance upon these assurances, Bright failed to take
defensive actions, such as leaving the area with his family,
hence creating the opportunity for the damages ultimately
sustained.” First Amended Complaint ¶ 30(g)(2), App. at
58a. State-created danger liability cannot be predicated on
these facts, however. The Supreme Court has spoken directly
to this matter. Bright does not, and cannot, claim that the
state in any way restricted his freedom to act on his family’s
own behalf. The DeShaney Court specifically held that, under
these circumstances, no “affirmative duty to protect arises . . .
from the State’s . . . expressions of intent to help” an
individual at risk. DeShaney, 489 U.S. at 200 (emphasis
added). Once again, the governing rule is that there can be no
liability in the absence of an affirmative exercise of state
authority.

                               C.

        Finally, Bright alleges that the parole officer’s
“confrontation with Koschalk, coupled with . . . inexplicable
delay emboldened Koschalk into believing that he would not
confront effective law enforcement action as he progressed
with his scheme to retaliate against the Bright family.” First
Amended Complaint ¶ 31, App. at 58-a. Here, again, Bright
seeks to bring the law enforcement delay within the scope of
the state-created danger doctrine by pointing to an affirmative
action of the state which preceded it.      The reality of the
situation described in the complaint is that what is alleged to
have created a danger was the failure of the defendants to

                               19
utilize their state authority, not their utilization of it. Bright
has identified no action of the defendants that utilized their
state authority in a manner that rendered Annette more
vulnerable to Koschalk than she would otherwise have been.
It is Officer Whalen’s alleged decision not to arrest in May
and the ensuing ten week delay about which Bright
complains. It is that failure to arrest and detain that his brief
argues created the danger, made Annette’s death foreseeable,
and was the product of deliberate indifference.

        It is true, as we have noted, that Bright’s complaint
alleges in conclusory fashion that it was both Officer
Whalen’s “confrontation with Koschalk” and the
“inexplicable delay” that “emboldened” Koschalk. Based on
the allegations of the complaint as a whole, however, one
cannot reasonably infer that there was any connection
between Officer Whalen’s accusing Koschalk of a probation
violation and Koschalk’s decision to murder Annette ten
weeks later. It is specifically alleged that what “emboldened”
Koschalk and thereby contributed to that decision was a belief
“that he would not confront effective law enforcement action
as he progressed with his scheme to retaliate.” First Amended
Complaint at ¶ 31, App. at 58a. It is the state’s creation of
that belief that is said to have rendered Annette more
vulnerable than she would otherwise have been. We may
assume for present purposes that the creation of that belief
could reasonably be attributed to the ten week delay in
serving Koschalk with notice of his probation violation
hearing. It could not reasonably be attributed, however, to the
probation officer’s calling a probation violation a probation
violation when confronted with it on May 4th.

                                20
        While a probation officer here took affirmative action
seeking compliance with the court’s protective order, just as
the social workers took affirmative action to secure and then
relinquish custody of Joshua DeShaney, the Due Process
Clause did not require that Westmoreland County “become
the permanent guarantor” of the Bright family’s safety from
private violence any more than it required Winnebago County
to “become the permanent guarantor” of Joshua’s safety from
the same sort of harm. Id. at 201. As in DeShaney, the only
affirmative exercise of state authority alleged in this case –
the so-called “confrontation” – “placed [the Brights] in no
worse position than that in which [they] would have been had
[the state] not acted at all.” Id. In short, the Brights were at
no greater risk immediately following the confrontation than
they were when it commenced. With respect to the ensuing
delay in exercising state authority, here, as in DeShaney, the
“most that can be said of the state functionaries in this case is
that they stood by and did nothing when . . . circumstances
dictated a more active role for them.” DeShaney, 489 U.S. at
203. The confrontation was not a misuse of state authority,
and the subsequent failure to exercise state authority was not a
violation of the Due Process Clause under DeShaney.

                              IV.

       Turning to Bright’s state claims, the District Court
determined that Westmoreland County, the City of Monessen,
and the individual state employees were entitled to immunity
from those claims. It further concluded that it should decline
to exercise its supplemental jurisdiction with respect to
Bright’s claims against Koschalk.

                               21
        On appeal, Bright does not challenge the merits of the
District Court’s determination that the county and city were
entitled to municipal immunity. Rather, he insists that the
Court, having dismissed the federal claims, should have
declined to entertain any of Bright’s state claims. With
respect to the claims against the individual state defendants,
Bright argues, in the alternative, that these defendants were
not entitled to immunity under the PPSTCA. Finally, Bright
insists that, if the District Court properly decided to determine
the state claims against the county, the city, and their
employees, it should not have abstained with respect to the
claims against Koschalk.

                               A.

       While our Court reviews district court decisions to
exercise supplemental jurisdiction for abuse of discretion, see
DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.
2003), we have also found that:

       [W]here the claim over which the district court has
       original jurisdiction is dismissed before trial, the
       district court must decline to decide the pendent state
       claims unless considerations of judicial economy,
       convenience, and fairness to the parties provide an
       affirmative justification for doing so.

Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d
Cir. 1995).

       The District Court recognized this rule and explained

                               22
that there were no “extraordinary circumstances” here that
would “warrant the exercise of jurisdiction over the state
claims” against Koschalk. App. at 19-a. While it did not
expressly address why it was proceeding to exercise
jurisdiction over the other state claims, we believe that the
District Court’s reason for distinguishing between the two
classes of claims is both apparent and appropriate.

       Governmental immunity – such as immunity for
municipalities and for public employees acting within the
scope of their duties under 42 Pa. Cons. Stat. §§ 8541, 8545 –
serves the public interest in avoiding burdening the state and
its employees with unnecessary litigation. Pennsylvania
immunity law appears to be no exception. See Kuzel v.
Krause, 658 A.2d 856, 858 (Pa. Commw. Ct. 1995)
(“Sovereign and governmental immunity involve the
constitutional question of the Commonwealth consenting to
be sued and the effect those suits would have on the public
purse . . . .”). See also In re Upset Sale, 522 Pa. 230, 232 (Pa.
1989) (finding the defense of municipal immunity non-
waivable by litigants because “a governmental agency cannot
be put at the mercy of negligent . . . waiver by counsel of a
substantive right designed to protect its very existence”). The
public interest protected by immunity doctrine has prompted
our Supreme Court to advise that immunity issues should be
resolved “early in the proceedings so that the costs and
expenses of trial are avoided where the defense is
dispositive.” Saucier v. Katz, 533 U.S. 194, 200 (2001).

      Understandably, the state defendants filed their
motions to dismiss the state claims on immunity grounds

                               23
shortly after learning of this action against them, and those
motions were briefed and argued simultaneously with the
motions to dismiss the § 1983 claims for failure to state a
claim. Accordingly, at the point when the District Court
concluded that the federal claims should be dismissed, it was
in a position to rule without delay on the state defendants’
entitlement to immunity. Given that any further delay in
ruling on that entitlement would undermine an important
objective of the state in recognizing such immunity, it is not
surprising that the District Court exercised jurisdiction with
respect to the motions of the state defendants while declining
to do so with respect to Koschalk, who had no claim of
immunity. In fairness to the state-actor defendants, the
District Court could hardly have done otherwise.

                              B.

       The District Court concluded that the individual state-
actor defendants were entitled to immunity under PPSTCA
because Bright’s allegations “could not support a finding that
the individual defendants ‘intended to violate the law or bring
about the harm that resulted to the plaintiffs.’” Id. at 17a
(quoting from Leidy v. Borough of Glenolden, 277 F.Supp.2d
547 (E.D. Pa. 2003)). We agree.

        Under § 8545 of the PPSTCA, a municipal employee
“is liable for civil damages on account of any injury to a
person or property . . . only to the same extent as his
employing local agency . . . .” 42 Pa. Cons. Stat. § 8545.
Local agencies are given broad immunity in 42 Pa. Cons. Stat.
§ 8541 which is qualified by eight exceptions that do not

                              24
apply to this case. The PPSTCA contains an additional
exception from immunity where a public employee is
concerned:

      In any action against a local agency or
      employee thereof for damages on account of an
      injury caused by the act of the employee in
      which it is judicially determined that the act of
      the employee caused the injury and that such act
      constituted a crime, actual fraud, actual malice
      or willful misconduct, the provisions of sections
      8545 . . . shall not apply.

42 Pa. Cons. Stat. § 8550. “Willful misconduct” – the only
clause that Bright argues describes the conduct of these
defendants – has recently been defined as follows:

      Willful misconduct . . . has been defined by our
      Supreme Court to mean conduct whereby the
      actor desired to bring about the result that
      followed or at least was aware that it was
      substantially certain to follow, so that such
      desire can be implied. . . . To prove willful
      misconduct, a plaintiff must establish that the
      actor desired to bring about the result that
      followed, or at least it was substantially certain
      to follow, i.e., specific intent.

Robbins v. Cumberland County Children and Youth Services,
802 A.2d 1239, 1252–53 (Pa. Commw. Ct. 2002). Our Court
has also recognized that “‘[w]illful misconduct’ in this

                              25
context has the same meaning as the term ‘intentional tort.’”
Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir.
2001) (citing Delate v. Kolle, 667 A.2d 1218, 1221 (Pa.
Commw. Ct. 1995) and Kuzel v. Krause, 658 A.2d 856, 859
(Pa. Commw. Ct. 1995)). Thus, even where a public
employee acts with a degree of culpability equivalent to
“recklessness,” Pennsylvania law nevertheless affords him
immunity. Williams v. City of Philadelphia, 569 A.2d 419,
421-22 (Pa. Commw. Ct. 1995) (“[T]he failure [of two public
employees] to take greater precautionary measures in light of
the circumstances, exemplifies a reckless disregard of the
existing danger; however, that behavior constitutes wanton,
not willful, misconduct. . . . [T]hey are immune from liability
under section 8545 of the Code.”).

        Bright does not allege that the individual state
defendants desired to bring about harm to Annette Bright (or
to her sister) or that they were aware that such harm “was
substantially certain to follow.” Rather, Bright alleges in his
complaint that they acted with “deliberate indifference,” App.
at 58a, and argues in his brief that they “knowingly and
deliberately disregarded a known risk.” Br. Appellant at 26.
Assuming arguendo that a reasonable jury could infer such
culpability from the facts alleged, the individual state-actor
defendants would still not have engaged in “willful”
misconduct and would still be entitled to immunity.

                              C.

      Bright has pointed to no considerations of judicial
economy, convenience, or fairness to the parties which would

                              26
have provided the District Court with an affirmative
justification for adjudicating the claims against Koschalk after
dismissing the federal claims. And we perceive none.

                              V.

       The judgment of the District Court will be affirmed.




BRIGHT V. WESTMORELAND COUNTY - NO. 05-2005



                              27
NYGAARD J., dissenting:

        I believe that the majority incorrectly states the
elements of our state-created danger exception in such a way
that leads them to incorrectly identify the dispositive inquiry
that drives our state-created danger test. This mis-focus, in
turn, has caused them to make analytical missteps in assessing
the adequacy of the claim presented in this case. It is
axiomatic that the pleadings in this case must be taken in their
entirety in ruling upon a motion under Rule 12(b)(6). In my
view, when assessed cumulatively, they establish not only the
existence of affirmative acts, but more importantly, that the
state used its authority to place the plaintiff in a position of
enhanced danger, thereby meeting the fourth element of the
state-created danger test. Hence, I respectfully dissent.

 I. The Fourth Element of the State-Created Danger Test

       The majority submits that the test developed in our
Circuit to assess the adequacy of a state-created danger claim
contains the word “affirmatively.” Specifically, they state the
fourth element of the test as whether:

       (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.

Maj. Op. at 9 (emphasis added). This, quite plainly, is an
incorrect statement of our test. Since Kneipp v. Tedder, 95
F.3d 119 (3d Cir. 1996) enunciated our state-created danger

                               28
test, not one of our cases has inserted the word
“affirmatively” into the fourth element of the test.9 See Mark
v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)
(“Cases like these have four things in common: ... (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.”); Kneipp, 95 F.3d at 1205 (applying the Mark 4-part
test); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908
(3d Cir. 1997) (quoting and applying the Mark 4-part test);
Smith v. Marasco, 318 F.3d 497, 506 (3d Cir. 2003) (noting
the fourth element of the Kneipp test as, “(4)[whether] the
state actors used their authority to create an opportunity that
otherwise would not have existed for the third party’s crime to
occur.”); Scheiber v. City of Philadelphia, 320 F.3d 409, 417
(3d Cir. 2003) (quoting the Kneipp test); Rivas v. City of
Passaic, 365 F.3d 181, 197 (3d Cir. 2004) (“The last element
of the Kneipp test asks whether the state actor used his or her
authority to create an opportunity, which otherwise would not
have existed, for the specific harm to occur.”). The majority
does not cite, nor can I find, any case or other form of support
for its claim, today, that the test that our Circuit has developed

   9
    Our initial attempt to establish a test for the state-created
danger exception to Deshaney v. Winnebago Cty. Servs. Dept.,
489 U.S. 189 (1989) can be traced to Mark v. Borough of
Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995) even though it has,
since Kneipp, been known as the Kneipp test. Recently, Judge
Ambro accurately charted modifications to our test, leading him
to question the appropriateness of continuing to refer to the
Deshaney exception as the Kneipp test. See Rivas v. City of
Philadelphia, 365 F.3d 181, 202-03 (3d Cir. 2004).
                               29
includes the word “affirmatively” in the fourth element.

 II. The Central Inquiry and Analysis Under the Fourth
                        Element

        By its insertion, the majority signals its belief that the
hallmark inquiry under the fourth element is whether the
state’s actions can be characterized as affirmative or not.10 As
I address below, this assertion stands quite starkly in contrast
to the dispositive inquiry for addressing the state-created
danger exception established by our Court.11


   10
     The majority states, “[i]t is important to stress, for present
purposes, that under the fourth element of a state-created danger
claim, ‘[l]iability under the state-created danger theory is
predicated upon the states’ affirmative acts which work to the
plaintiffs’ detriments in terms of exposure to danger.’” Maj. Op.
at 10 (citations omitted).
   11
     I am not suggesting that the presence of an affirmative act
does not play a part in our state-created danger inquiry. To
satisfy the fourth element, there still must be something more
than simple inaction by the state even “when suspicious
circumstances dictate[] a more active role.” Deshaney, 489 U.S.
at 203. However, this inquiry is limited in its effectiveness. As
I discuss below, to hold that the mere presence of omissive acts
abrogates any ability to satisfy the fourth element, especially
when combined with other affirmative conduct, misconceives
the nature of our test and the language from which the state-
created danger exception derives: “[w]hile the state may have
been aware of the dangers that Joshua faced in the free world, it
                                30
       Our recent cases have shifted away from inquiring into
the existence of affirmative acts as a standard to establish the
fourth element of our test for a compelling reason: to so hinge
our inquiry would center us squarely within the troublesome
decisional thicket governing the distinction between action
and inaction.12 Writing for the Court in Morse, Chief Judge
Scirica addressed the significance of this dilemma:

        one of the common factors in cases addressing the
        state-created danger is that the state actors “used their


played no part in their creation, nor did it do anything to render
him any more vulnerable to them.” Id. at 201.
   12
        When the Mark Court formulated, for the first time, our
Circuit’s test for the state-created danger exception, it did so in
full recognition of the United States Court of Appeals for the
Seventh Circuit’s articulation in Bowers v. DeVito, 686 F.2d 616
(7th Cir. 1982):
        We do not want to pretend that the line between action
        and inaction, between inflicting and failing to prevent the
        infliction of harm, is clearer than it is. If the state puts a
        man in a position of danger from private persons and
        then fails to protect him, it will not be heard to say that
        its role was merely passive; it is as much an active
        tortfeasor as if it had thrown him into the snake pit.
Bowers, 686 F.2d at 618. These words ring true today. As I
explain later, the claim at issue in this case is exactly that the
state put a person in a position of danger and then failed to
protect them. To characterize this as a merely passive act is
overtly wrong.
                                 31
       authority to create an opportunity that otherwise would
       not have existed for the third party’s crime to occur.”
       The dispositive factor appears to be whether the state
       has in some way placed the plaintiff in a dangerous
       position that was foreseeable, and not whether the act
       was more appropriately characterized as an
       affirmative act or omission.

 Morse, 132 F.3d at 915 (emphasis added) (citations omitted).
In Morse, we rejected the affirmative act/omission inquiry
because of the difficulty it posed in reaching sound
conclusions. Id. at 914 (noting that “[c]onduct that has been
held to be an affirmative act under one set of facts has not met
that standard in a similar setting.”). And we criticized the
District Court for reading the fourth element “to contemplate
that a state actor must affirmatively act to create the risk
which results in harm to the plaintiff.” Id. at 914. We also
explicitly recognized that the question of whether an
affirmative act is required had already been answered. Id. at
915 (“[w]hether an affirmative act rather than an act of
omission is required ... ha[s] been answered by Mark”).
Consequently, as Morse represents a controlling case, I cannot
join in the majority’s assertion to the contrary, that the
hallmark of our test is whether the acts can be characterized
as affirmative.
        Morse is not the only controlling case the majority
elides. Rivas reflects our most recent chance to address the
state-created danger exception and further cements Morse’s
rejection of the affirmative act/omission inquiry. There,
Emergency Medical Technicians (“EMTs”) called for police
backup after encountering a severely psychotic and

                              32
convulsing middle-aged man. Upon the police officers’
arrival, the EMTs informed them that the man, Mr. Rivas, had
assaulted one of the EMTs. They failed to advise the police,
however, that Mr. Rivas had a medical condition that
explained his actions, and the EMTs then abandoned control
over the situation. After an altercation with the police, Mr.
Rivas was placed on stretcher and at some point stopped
breathing and died. We found that the EMTs’ conduct, taken
cumulatively, satisfied the fourth element of the state-created
danger test. Specifically, we concluded that the conduct
“created an opportunity for harm that would not have
otherwise existed” and that “were it not for those acts, Mr.
Rivas presumably could have remained in the apartment’s
bathroom for the duration of his seizure without incident.”
Rivas, 365 F.3d at 197.

         Looking closely at the relevant conduct in Rivas, it is
clear that our approach under the fourth element of the state-
created danger exception now rests some distance away from
the affirmative act/omission inquiry. In Rivas, the conduct we
found to have met the fourth element of the test involved an
initial act by the EMTs - calling and informing the officers of
Mr. Rivas’ assault on one of the EMTs - and then two
omissions - not advising the officers of Mr. Rivas’ medical
condition and abandoning control over the situation. We
found this conduct to have met the fourth element of the test
despite, or rather in spite of, any act/omission characterization
that might have been made. Thus, Rivas stands both for our
Court’s shift away from the affirmative act/omission inquiry
and also for the proposition that the conduct must be looked
at in its entirety to determine whether the state placed the

                               33
plaintiff in a position of enhanced danger.

        Today’s case presents a set of pleadings which, if
proven, would establish nearly identical conduct as that
analyzed in Rivas. Bright claims that the initial confrontation
between Koschalk and his parole officer, while Koschalk was
violating his parole, and then the failure by that parole officer
to take appropriate action on this violation emboldened
Koschalk to believe he could act with impunity in carrying
out his increasingly delusional and violent threats and plans.
The conduct alleged here, when taken together, contains both
an initial act - the confrontation between the parole officer
and Koschalk - and then an omission - the parole officer’s
abdication of his responsibility to take action on a clear parole
violation.

        We cannot simply annul Rivas’ prescription that it is
the totality of the conduct that must be analyzed under the
fourth element of the state-created danger exception. The
majority dismisses Bright’s claim on the basis that “Bright has
identified no action of the defendants that utilized their state
authority in a manner that rendered Annette more vulnerable
to Koschalk than she otherwise would have been” and that “it
is the ensuing ten week delay about which Bright complains.”
Maj. Op. at 15 (emphasis added). I am at a loss to understand
how, based on the pleadings here, the majority could claim
that there is “no action of the defendants that utilized their
state authority in a manner that rendered Annette more
vulnerable” to harm. Bright has repeatedly and specifically
claimed that the confrontation itself was the trigger for



                               34
increasing Koschalk’s disposition to violence.13 Had there
been no confrontation but rather merely a delay of
enforcement, Bright could not successfully claim that
Koschalk was emboldened to act more violently.14 Instead,


    13
      As this appeal comes to us on a Rule 12(b)(6) motion, I
cannot accept the majority’s conclusory dismissal of the
plaintiff’s allegations. Bright must only satisfy the liberal notice
pleading requirements under Rule 8(a). See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512-13 (2002). Accordingly, we
are bound not to dismiss the complaint “unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claims which would entitle him to relief.” Conley
v. Gibson, 335 U.S. 41, 45–46 (1957). Additionally, we are
bound to construe all reasonable inferences in favor of the
plaintiff. See id. Thus, for the purposes of this case, we should
not dismiss Bright’s claims if the sum of all alleged facts would
show that the state used its authority in a way that created a
danger to the plaintiff or that rendered the plaintiff more
vulnerable to danger than had the state not acted at all.

   14
     Indeed, had Bright’s claim alleged merely that the parole
officer’s failure to arrest Koschalk created an opportunity for
harm that would not have otherwise existed, this would have
been an easy case. Such a claim would clearly fail under the
state-created danger doctrine, precisely because there would
have been nothing to support the requirement that the state have
placed the plaintiff in a position of enhanced danger. Such a
pleading would be governed by Deshaney’s rule requiring
something more than mere idleness, even where circumstances
                                35
the confrontation itself plays an integral role in creating an
opportunity for harm that would otherwise not have existed,
placing this case outside the purview of Deshaney and firmly
within the ambit of our state-created danger exception.

        To highlight my problem with the majority’s logic, if
we applied it to the facts in Rivas it would read something like
this: “the fault Rivas finds is solely with the EMTs’ failure to
disclose certain information and the abdication of
responsibility. Because there is nothing affirmative in these
acts, the claim cannot be sustained.” The majority’s
approach, emphasizing as it does the necessity of
characterizing acts as affirmative, only underscores its
inadequacies. By cabining Bright’s claim as based solely on
an ensuing delay in taking action, the majority lops off the
initial affirmative act so it can conclude that there was no
affirmative act. I fail to understand how this analysis at all
resembles the meaning of our fourth element inquiry.

        Without belaboring the point more, the basis of
Bright’s claim is that the affirmative confrontational act, like
the initial act of the EMTs in Rivas, taken together with the
ensuing conduct, created an opportunity for harm that
otherwise would not have existed, thus surpassing the
threshold necessary to meet the fourth element of the state-
created danger test. Regardless of whether Bright can
ultimately prove this, if our test is to have any content, he is at
least entitled to try.


dictate a more active role, in order for a claim to be stated. See
Deshaney, 489 U.S. at 203.
                                36
   III. Emboldenment Claims under the State-Created

                      Danger Exception

       This appeal poses the question of whether our state-
created danger exception supports a theory of emboldenment.
Our Court has never addressed, head on, this specific
question.

        As the above analysis makes clear, Bright’s claim, for
the purposes of the fourth element of the state-created danger
claim, is analogous to Rivas. Because we held that the claim
in Rivas met the fourth element of the state-created danger
test, so too, we must hold here. Implicit in my conclusion,
then, is the belief that our state-created danger exception
allows for a claim premised on an emboldenment theory. To
hold otherwise would render the render the state-created
danger exception logically and analytically inconsistent.

       The majority rejects Bright’s emboldenment claim by
responding that, despite the pleadings to the contrary, Bright
is unable to bring his claim within the state-created danger
exception. This simple assertion, without more, is
insufficient.

        Importantly, the difference between Rivas and this case
is not in the nature of the relevant conduct - in each case the
plaintiff has pleaded a combination of affirmative acts and
omissions - or in the general effect that the conduct has had
on the situation - in each case the claimed effect was that the
plaintiff was placed in a situation of enhanced danger.

                              37
Instead, the only difference is in the theory of how the
claimed conduct placed the plaintiff in a position of enhanced
danger. In Rivas, the alleged behavior put the plaintiff in a
position of enhanced danger because the EMTs called the
police and only disclosed certain information about the nature
of the situation - information which affected the way the
officers handled the situation - and then abandoned control
over the event. We might say that this claim is premised on a
theory of misrepresentation; that is, the EMTs’
misrepresentation to the officers enhanced the danger to the
plaintiff because it created a situation where the officers
would act more violently. Here, Bright’s claim is premised
on a theory of emboldenment: the increased danger arose
from Koschalk’s confrontation with his parole officer and
ensuing lack of effective enforcement because it emboldened
Koschalk to act more violently.

        I can see no logical or analytical reason to allow Rivas’
claim and not Bright’s. For the purposes of the fourth
element, there is simply no functional difference between the
two claims, precisely because the result is the same. In both,
the state has acted to place the plaintiff in a position of
increased danger. True, the claims posit different theories as
to why the plaintiff was placed in a position of enhanced
danger, but nevertheless, both establish the claim that, but for
the state’s conduct, the plaintiff would not have been placed
in that position at all. Because our inquiry under the fourth
element asks exactly this, both claims meet the test.

                              IV.



                               38
       When viewed in light of our jurisprudence and our
current position on the proper inquiry for the state-created
danger exception, the majority’s initial insertion takes on a
significantly different character and changes materially our
inquiry. By inserting the word “affirmatively,” the majority
reworks not only the actual language of our test, but also our
central inquiry in light of Morse and Rivas.

        Moreover, until today our case law has evidenced an
unambiguous shift away from reliance on the frustratingly
murky distinction between affirmative action and omission. I
fear that with a single insertion, the majority succeeds in
pulling us right back in. We have consciously and, I believe,
prudently moved away from this distinction precisely because
of the difficult and often fruitless analysis required therefrom.
Thus it is true, as the majority asserts, that “[i]t is the misuse
of state authority, rather than a failure to use it, that can
violate the Due Process Clause.” Maj. Op. at 10. But this
statement proves too much. It exposes the principle,
established in Morse and Rivas, that the central inquiry of our
state-created danger test is whether the state placed the
plaintiff in a position of enhanced danger. We cannot ignore
this principle because we believe the inquiry should be
something else. It is true that the Court in Deshaney sought
impartiality in the face of “natural sympathy.” Deshaney, 489
U.S. at 212. Importantly for the plaintiffs in this case,
however, we should not plunder whatever merit that
exhortation may have had. Tragedy should not incite
illegitimate influence; yet neither should it be dismissed
before it has had a chance to plead its case.



                               39
Upon the foregoing, I respectfully dissent.




                       40
