Hynson v. City of Chester

• Decision Date: 08 March 1990
• Docket Number: Civ. A. No. 86-2913.
• Parties: Jalee HYNSON, et al. v. CITY OF CHESTER, Captain Joseph Lastowka and Officer Daniel Elder.
• Court: U.S. District Court — Eastern District of Pennsylvania

731 F. Supp. 1236

Jalee HYNSON, et al. v. CITY OF CHESTER, Captain Joseph Lastowka and Officer Daniel Elder.

Civ. A. No. 86-2913.

United States District Court, E.D. Pennsylvania.

March 8, 1990.

A. Terry Daly, Philadelphia, Pa., for plaintiffs.

Joseph Goldberg and Kurt Denke, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, Philadelphia, Pa., for defendants.

MEMORANDUM

KATZ, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the motion of defendants City of Chester, Captain Lastowka and Officer Elder for summary judgment will be granted in part and denied in part.

BACKGROUND

On October 15, 1984, Alesia Hynson was murdered by Jamil Gandy, her former boyfriend, and the father of one of her children. The murder took place the day after the Chester police were called to Ms. Hynson's home to investigate an incident involving Mr. Gandy. Although Ms. Hynson had applied for and received protection from abuse orders on earlier occasions, the most recent order had expired on Friday, October 11, 1984. On that day, a hearing was held and a new order was approved, although the order was not signed until October 16, 1984.

The incident on October 14, 1984 took place while Ms. Hynson, together with her sister and cousin, were out at an "after-hours" club in Chester. Ms. Hynson's children were left in the care of a babysitter. While the women were at the club, Mr. Gandy threatened Ms. Hynson. He later visited Ms. Hynson's Chester residence and broke a window in an attempt to gain entrance. The babysitter called the police, but they did not respond; apparently due to an incorrect address. When the women returned home and heard of Mr. Gandy's attempted entry, Ms. Hynson's sister, Deanna Williams, called the police.

Defendants Captain Lastowka and Officer Elder, together with Sergeant Chess (no longer a defendant), responded to the call. The women informed the responding officers of the events that had taken place that evening. It is unclear, however, exactly how much the police officers knew or were told about Ms. Hynson's prior problems with Mr. Gandy and the earlier protection from abuse orders. When Ms. Hynson was unable to produce a valid order, Officer Elder radioed the Chester Police to verify that there were no outstanding warrants for Mr. Gandy's arrest and that no protection from abuse order existed. What happened next is disputed. The police officers maintain that upon learning that no valid protection from abuse order existed, they then asked Ms. Hynson to sign a criminal complaint and to accompany them in a search for Mr. Gandy. Both requests, the defendants claim, were refused. The plaintiffs contend that the women described Mr. Gandy to the police and told them where he could be located, but that the police officers never offered either to allow Ms. Hynson to accompany them or to have her sign a criminal complaint. The police remained at the scene until Ms. Hynson left for her mother's house.

Plaintiffs in this case, Ms. Hynson's mother and children, initially brought this action for money damages pursuant to 42 U.S.C. § 1983 against numerous defendants. Of these, only defendants City of Chester, Captain Lastowka and Officer Elder remain. By memorandum and order dated April 19, 1988, I granted summary judgment in favor of the individual police officers on plaintiffs' due process claim and in favor of the City of Chester on plaintiffs' pendent state law claims. I denied defendants' motion for summary judgment with respect to plaintiffs' due process claim against the City of Chester, plaintiffs' equal protection claim against all defendants, and plaintiffs' pendent state claims as to the individual defendants.

The individual police officers appealed that part of my order denying them summary judgment. The Court of Appeals for the Third Circuit remanded the qualified immunity issue as to Lastowka and Elder on the equal protection claim. Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1988). On remand, I permitted the plaintiffs to amend their complaint and allowed the parties to engage in further discovery.

The pending motion seeks summary judgment on the remaining due process claim against the City of Chester, the equal protection claims against all defendants, and the pendent state law claims against the individual officers.¹

DISCUSSION

A. Due Process

In the nearly two years since my memorandum and order of April 19, 1988, there have been significant developments in the law of due process in the context of deprivations of rights by private third parties. In DeShaney v. Winnebago County Department of Social Services, ___ U.S. ___, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court rejected the argument that in certain circumstances a "special relationship" arises between an individual and the state when the state promises to provide protection from known dangers. Prior to DeShaney, the "special relationship" doctrine was accepted law in the Third Circuit. See Estate of Bailey By Oare v. County of York, 768 F.2d 503 (3d Cir.1985).

DeShaney involved the failure of the Winnebago County Department of Social Services to adequately protect the safety of Joshua DeShaney. Despite an ongoing history of child abuse and active involvement of a caseworker, the Department did not remove the child from the custody of his father. Joshua's father beat him so severely that the cumulative effect was permanent brain damage.

In DeShaney, the Court limited the responsibility of the state to protect individuals from private violence to those situations in which an individual is in the custody of the state and is therefore unable to act on his own behalf. As the Court stated:

The rationale for this principle is simple enough: When the State, by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

Id. 109 S.Ct. at 1005-06 (citing Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976); Youngberg v. Romero, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982)).

Two basic facts require me to apply DeShaney in this case. First, Ms. Hynson was not in custody or in any other way restrained by the state at the time of her death.² Second, the murder was an act of private violence. Consequently, plaintiffs cannot recover in this action for denial of due process because no duty existed to protect Ms. Hynson from the violent acts of Mr. Gandy, a private actor.³

In an effort to save this claim from the fate dictated by DeShaney, plaintiffs have advanced a second theory relating to the denial of due process. Citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), plaintiffs now claim that Ms. Hynson possessed an entitlement to police protection based on Pennsylvania's Protection From Abuse Act, Pa. Stat.Ann., tit. 35 § 10181 et seq. (Purdon 1988 Supp.). Roth stands for the proposition that the requirements of due process are not implicated unless an individual possesses a property interest. As Justice Stewart described them, "property interests are not created by the Constitution. Rather, they are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. An example of an entitlement created by statutory terms is the interest in receiving welfare payments.

Plaintiffs argue that Ms. Hynson's most recent temporary protection from abuse order and the hearing on October 11, 1984 "provided the basis for her understanding" that she would have the benefit of police protection. Plaintiffs' Memorandum at 7. Ms. Hynson's subjective impressions, however, are irrelevant here.⁴ What is relevant is whether the Protection From Abuse Act provides the right to police protection.

Pennsylvania's Protection From Abuse Act creates a comprehensive scheme to aid the victims of domestic violence. The relief available under the Act includes: (1) ordering a defendant to refrain from further abuse; (2) granting sole possession of a household or residence to a plaintiff; (3) awarding temporary custody of minor children; (4) following a hearing, an order directing a defendant to provide financial support; (5) prohibiting a defendant from any contact with a plaintiff; (6) ordering a defendant to relinquish all weapons to the sheriff; and (7) ordering a defendant to pay for losses attributable to abuse including attorney fees. See Protection From Abuse Act, Pa.Stat.Ann., tit. 35 § 10186. Under the Act as written in 1984, copies of all orders were filed with the appropriate police department, see § 10187. With regard to police procedure in connection with a violation of an order, § 10190(c) provides as follows:

An arrest for violation of an order issued pursuant to this act may be without warrant upon probable cause whether or not the violation is committed in the presence of the police officer. The police officer may verify, if necessary, the existence of a protection order by telephone or radio communication with the appropriate police department.

Thus, the statute modifies police procedure in that it authorizes a warrantless arrest in appropriate circumstances. Assuming, without deciding, that Hynson was the beneficiary of a valid order, the protection provided by such a valid order does not encompass the right to the type of police protection suggested by plaintiffs. There is simply nothing in the Protection From Abuse Act that entitles the named individual to the immediate...