515 F.3d 224 (3rd Cir. 2008), 06-2869, Phillips v. County of Allegheny

Docket Nº:06-2869.
Citation:515 F.3d 224
Party Name:Jeanne PHILLIPS, Administratrix of the Estate of Mark Phillips, deceased, Appellant v. COUNTY OF ALLEGHENY; Northwest Regional Communications; Allegheny County 9-1-1, f/k/a Northwest Regional Communications; Daniel Nussbaum; Danielle Tush; Brian Craig; Leonard Deutsch; Ryan Ging; Susan Zurcher; Phillip Cestra.
Case Date:February 05, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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515 F.3d 224 (3rd Cir. 2008)

Jeanne PHILLIPS, Administratrix of the Estate of Mark Phillips, deceased, Appellant


COUNTY OF ALLEGHENY; Northwest Regional Communications; Allegheny County 9-1-1, f/k/a Northwest Regional Communications; Daniel Nussbaum; Danielle Tush; Brian Craig; Leonard Deutsch; Ryan Ging; Susan Zurcher; Phillip Cestra.

No. 06-2869.

United States Court of Appeals, Third Circuit.

February 5, 2008

Argued June 26, 2007.

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 05-cv-1502) District Judge: The Honorable Arthur J. Schwab

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Philip A. Ignelzi, Esq. (Argued), Michael A. Murphy, Esq., Ogg, Cordes, Murphy & Ignelzi, Pittsburgh, PA, for Appellant .

Scott G. Dunlop, Esq., Stephen J. Poljak, Esq. (Argued), Alan E. Johnson, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Appellees Northwest Regional Communications, Nussbaum, Tush, Craig, Deutsch, Ging, Zurcher, and Cestra.

Wendy Kobee, Esq., Michael H. Wojcik, Esq., Office of Allegheny County Law Department, Pittsburgh, PA, for Appellees County of Allegheny and Allegheny County 911.

Before: FISHER, NYGAARD, and ROTH, Circuit Judges.


NYGAARD, Circuit Judge.

Jeanne Phillips ("Phillips"), individually and in her capacity as administrator of the estate of her son, decedent Mark Phillips, appeals the District Court's dismissal of her claims against various defendants for violations of 42 U.S.C. § 1983. The District Court, in deciding a motion under FED.R.CIV.P. 12(b)(6), was required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to Phillips. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover, in the event a complaint fails to state a claim, unless amendment would be futile, the District Court must give a plaintiff the opportunity to amend her complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). Because the District Court did not follow these dictates, we will reverse in part and remand.


As is typical with state-created danger cases, the facts here are inescapably tragic. Beginning in October of 2003, Michael Michalski, who was employed by the Allegheny County 911 Call Center as a dispatcher, used his position to surreptitiously gain access to unauthorized information. Specifically, Michalski ran multiple searches of the 911 Call Center's computer network and databases in an attempt to locate the whereabouts of his former girlfriend, Gretchen Ferderbar, and her then-boyfriend, Mark Phillips. By October 19, 2003, Daniel Nussbaum, who was Michalski's supervisor, became aware of Michalski's actions and placed Michalski on a one-week suspension, but allowed Michalski to remain on the job for a week. The day before the suspension took effect, Michalski again used the 911 Call Center's computer network and databases without

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authorization to access personal information regarding Mark Phillips. Michalski specifically accessed Mark Phillips' motor vehicle and license plate registrations in an effort to track and locate Mark Phillips' whereabouts.

During the evening hours of October 28, 2003, and the early morning hours of October 29, 2003, while on suspension, Michalski made numerous telephone calls to the 911 Call Center and spoke with Danielle Tush and Brian Craig. During those telephone calls, Michalski requested information that would assist him in locating Mark Phillips. Tush and Craig assisted Michalski, aware that they were accessing unauthorized personal information that had no relationship to their jobs as dispatchers for the 911 Call Center.

Gretchen Ferderbar contacted Nussbaum to inform him that Michalski had accessed the 911 Call Center's computer system in his position as a dispatcher to obtain information which enabled him to track and locate her and Mark Phillips at Mark Phillips' residence. After confirming that Michalski had improperly accessed information regarding Mark Phillips, Nussbaum met with Michalski at the 911 Call Center and confronted him about his repeated and unauthorized use of the 911 Call Center's computer system. Michalski admitted to Nussbaum that he had used the 911 Call Center's computer system to gain access to unauthorized information regarding Mark Phillips, and Nussbaum terminated Michalski's employment with the 911 Call Center.

Recognizing Michalski's "volatile appearance" and apparently concerned that Michalski might commit a violent act, Nussbaum placed two telephone calls. Nussbaum left either a voicemail message on Ferderbar's cellular telephone warning her to be careful and to be on guard for Michalski or Nussbaum warned her in person - the record is unclear. What is clear, however, is that Nussbaum also contacted the McCandless Township Police Department to notify them of Michalski's volatile state. Nussbaum made no effort, however, to contact the police departments of Shaler Township or the Borough of Carnegie where Ferderbar and Phillips, respectively, lived. Despite recognizing that Michalski had used the 911 Call Center's computer system to track Mark Phillips, Nussbaum made no effort to detain Michalski, to deter him from reaching Mark Phillips or to warn Mark Phillips of Michalski's potentially violent behavior.

Later that same day, Michalski contacted dispatchers at the 911 Call Center, including Tush, Craig, Leonard Deutsch, Ryan Ging, Susan Zurcher and Phillip Cestra, to explain the circumstances of his termination. Michalski indicated that he "had nothing left to live for" and that Ferderbar and Mark Phillips were going to "pay for putting him in his present situation." Despite this contact by Michalski, none of the dispatchers contacted either Ferderbar or Mark Phillips or the police departments of the Township of Shaler or the Borough of Carnegie. Later that afternoon, Michalski shot and killed Mark Phillips with a handgun. Michalski also shot and killed Ferderbar and her sister.

Jeanne Phillips, as Administratrix of her son's estate, sued numerous defendants, including Allegheny County, Allegheny County 911, 911 Supervisor Nussbaum and 911 Dispatchers Tush, Craig, Deutsch, Ging, Zurcher and Cestra, alleging violations of Mark Phillips' civil rights under 42 U.S.C. § 1983 and alleging, through pendant jurisdiction, a wrongful death action, and a survivorship action. In response, Appellees moved to dismiss Phillips' claims

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pursuant to Federal Rule 12(b)(6) and the district judge granted the motion.1


We have jurisdiction pursuant to 28 U.S.C. § 1291. The standard of review for a dismissal under FED.R.CIV.P. 12(b)(6) is de novo. Omnipoint Communications Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000). Because this standard requires us to review the District Court's order anew and without any deference, we pause here to re-evaluate our de novo standard of review in light of the Supreme Court's recent decision in Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).2

After oral argument, we asked the parties to brief the Twombly decision's impact on pleading standards generally and on this appeal specifically. Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts. In Twombly, the Supreme Court held that the plaintiffs failed to state a claim under § 1 of the Sherman Antitrust Act. The plaintiffs had alleged that defendants had engaged in parallel conduct, but had pleaded no set of facts making it plausible that such conduct was the product of a conspiracy. In reaching this decision, the Supreme Court rejected language that long had formed part of the Rule 12(b)(6) standard, namely the statement in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. 99.

What makes Twombly's impact on the Rule 12(b)(6) standard initially so confusing is that it introduces a new "plausibility" paradigm for evaluating the sufficiency of complaints. At the same time, however, the Supreme Court never said that it intended a drastic change in the law, and indeed strove to convey the opposite impression; even in rejecting Conley's "no set of facts" language, the Court does not appear to have believed that it was really changing the Rule 8 or Rule 12(b)(6) framework. Therefore, our review of how

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Twombly altered review of Rule 12(b)(6) cases must begin by recognizing the § 1 antitrust context in which it was decided. See e.g., Twombly, 127 S.Ct. at 1963 ("We granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct."). Outside the § 1 antitrust context, however, the critical question is whether and to what extent the Supreme Court altered the general Rule 12(b)(6) standard.

Before Twombly, that standard had been well-established for decades. Our typical statement of the standard has instructed that:

The applicable inquiry under Rule 12(b)(6) is well-settled. Courts are required to accept all well-pleaded allegations in the complaint as true and to draw all reasonable inferences in favor of the non-moving party. The inquiry is not whether plaintiffs will ultimately prevail in a trial on the merits, but whether they should be afforded an opportunity to offer evidence in support of their claims. Dismissal under...

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