Leidy v. Borough of Glenolden

• Decision Date: 13 August 2003
• Docket Number: No. CIV.A. 01-4361.,CIV.A. 01-4361.
• Citation: 277 F.Supp.2d 547
• Parties: David W. LEIDY and Kathleen E. Leidy, individually and as Co-Personal Representatives of the Estate of Roxanne Leidy and Guardians of the Estate of Amanda Leidy v. BOROUGH OF GLENOLDEN, Police Chief Edward Cooke, individually and in his official capacity, Police Officer Matthew Illich, individually and in his official capacity, County of Delaware, Police Dispatcher Raquel Lewandowski, individually and in her official capacity, Delaware County Board of Prison Inspectors, Wackenhut Corrections Corporation
• Court: U.S. District Court — Eastern District of Pennsylvania

277 F.Supp.2d 547

David W. LEIDY and Kathleen E. Leidy, individually and as Co-Personal Representatives of the Estate of Roxanne Leidy and Guardians of the Estate of Amanda Leidy v. BOROUGH OF GLENOLDEN, Police Chief Edward Cooke, individually and in his official capacity, Police Officer Matthew Illich, individually and in his official capacity, County of Delaware, Police Dispatcher Raquel Lewandowski, individually and in her official capacity, Delaware County Board of Prison Inspectors, Wackenhut Corrections Corporation

No. CIV.A. 01-4361.

United States District Court, E.D. Pennsylvania.

August 13, 2003.

COPYRIGHT MATERIAL OMITTED

Jerome Brown, Philadelphia, PA, Philip A. Yampolsky, Cynwyd, PA, for Plaintiffs.

Christopher R. Mattox, Diorio & Sereni, LLP, Media, PA, Sean P. McDonough, Dougherty, Leventhal & Price, LLP, Moosic, PA, for Defendnts.

MEMORANDUM

DALZELL, District Judge.

Gerald Bennett entered the Glenolden Borough Police Station to surrender on a bench warrant issued for failing to attend the sex offender treatment class mandated as a condition of his parole for indecent assault. But the police, instead of arresting Bennett, let him leave.

Six days later, Bennett murdered with the strap of her bra Roxanne Leidy, the woman in whose home he was a boarder. He also raped her thirteen year old daughter, Amanda Leidy.

Plaintiffs are David and Kathleen Leidy, the representatives of the Estate of Roxanne Leidy and the guardians of Amanda Leidy. They bring this action against the police officers and other state authorities whom they deem responsible for frustrating Bennett's surrender and enabling him to commit these horrific crimes.¹ Plaintiffs allege that defendants deprived them of life and liberty under the Due Process Clause of the Fourteenth Amendment. This claim requires us to consider the doctrine of state-created danger and, as such, the interplay of private parties and state actors.

Before us are defendants' motions for summary judgment.

I. Standard of Review

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the evidence, and make all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party carries its burden, the nonmoving party must "come forward with `specific facts showing there is a genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). The task for the Court is to inquire "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505; Tabas v. Tabas, 47 F.3d 1280, 1287 (3d Cir. en banc 1995).

Because defendants move for summary judgment, we set forth the facts in the light most favorable to plaintiffs. Cloverland-Green Spring Dairies, Inc. v. Penn. Milk Marketing Board, 298 F.3d 201, 205 (3d Cir.2002).

II. Factual Background

A. The Police Station

At 5:42 p.m. on August 26, 1999, it is undisputed that Gerald Bennett entered the Glenolden Borough Police Station to surrender on a bench warrant a judge had issued for his arrest. Bennett entered the station with a man and two children. Bennett carried a duffle bag, apparently containing a change of clothes. Soon after they escorted Bennett into the station, the man and children who accompanied Bennett left.

Police officer Matthew Illich was doing routine paper work when he noticed Bennett. Illich asked Bennett if he could help him and Bennett said that he was turning himself in. When Illich asked Bennett what he was turning himself in for, Bennett responded that his probation officer told him to surrender, but he would not state the reason. Illich Dep. at 14-18, 21, 25; Cooke Dep. at 79.

Although Glenolden is a small community, Illich did not recognize Bennett. Illich sat Bennett down at a desk and took from him the personal information necessary to check for a warrant, i.e., name, date of birth, and social security number. Bennett also furnished a photographic identification at Illich's request. Illich Dep. at 14-18, 21, 83.

Equipped with the announced fugitive's personal information, Illich telephoned the 911 dispatcher at the Delaware County Communications Center (known for purposes of this litigation as "Delcom") to check whether a warrant was reported for Gerald Bennett. The dispatcher replied that one was. She noted that Gerald Bennett was wanted for violation of probation and a bench warrant for his arrest was recorded in NCIC, CLEAN, and the County Bench Book.² Transcript of radio call (Aug. 26, 1999) (in Pls.' Mot. Summ. J. at Ex. 7) (hereinafter "Aug. 26 Radio Call").

Illich did not ask the dispatcher to fax the printout of the NCIC and CLEAN "hit" on Gerald Bennett. The NCIC or CLEAN hit, it is undisputed, not only corroborated that there was a warrant for Bennett but also stated the county of issue, Delaware County, and the offense on which Bennett violated probation—indecent assault. Lewandowski Dep. at 31; Cooke Dep. at 62.

Though Illich did not request a fax, there is a dispute as to whether a fax of the NCIC hit was sent to him. Illich denies having received it, and Police Chief Edward Cooke, who was also in the station that evening, has no specific recollection of seeing the fax. But Raquel Lewandowski, an experienced Delcom dispatcher and the dispatcher that evening, attests that it is her standard practice to fax the NCIC and CLEAN printout to the officer whether or not the officer requests it. Police Chief Edward Cooke confirms that experienced Delcom dispatchers do fax a printout of the NCIC or CLEAN hit regardless of whether the officer requests it. Illich Dep. at 74-76; Lewandowski Dep. at 59-60, 72; Cooke Dep. at 87, 88, 135. In view of this dispute of fact, we must assume on summary judgment that Officer Illich received the NCIC and CLEAN fax from dispatcher Lewandowski.

After informing Illich that a bench warrant was published in NCIC, CLEAN, and the County Bench Book, police dispatcher Lewandowski told Illich that she would obtain confirmation of the warrant and call Illich back. Aug. 26 Radio Call.

As it turns out, there is a distinction between checking and confirming a warrant. An officer "checks" whether one is subject to a warrant by running an inquiry on NCIC and CLEAN. If NCIC and CLEAN reveal that the person is subject to a warrant, the warrant has "checked out", and the person is placed in custody. The officer then must "confirm" the warrant. The officer confirms the warrant by obtaining a "hard copy" of the warrant, or the warrant itself. A facsimile of the warrant will also do. The officer furnishes the warrant to the constable who delivers the person to the Delaware County Prison ("the Prison"). Without the warrant, the Prison will not accept the fugitive. These policies for checking and confirming a warrant are further described infra Part II.C.

The Delaware County warrants were stored in the Delaware County Prison. Consequently, to confirm the warrant, the Delcom dispatcher had to call the Prison to ask that the intake clerk retrieve the warrant and fax it to Officer Illich at the Glenolden Police Department. Since Illich expected that the warrant would arrive in his fax machine momentarily, he called Constable Gerald Bosch to "get him started" with picking up Bennett and delivering him to the Prison. Illich Dep. at 18.

Several minutes after they last spoke, the Delcom dispatcher telephoned Illich to inform him that the Prison did not have a warrant on Bennett. The transcript of that conversation evidences Illich's surprise, and even incredulity, that a warrant could not be found:

[Dispatcher:] Um, the prison doesn't have anything on him. Mr. Gerald Bennett.

[Illich:] Well that's funny, I just got a confirmation from CLEAN, there were squaring that away, County Bench and NCIC. [sic]

[Dispatcher:] Yeah, but there's no hard copy. . . .

Aug. 26 Radio Call at 3.

Illich admitted that it is "unusual" for a warrant to come up on NCIC, CLEAN, and the Bench Book, but for the Prison not to have a copy of it. Indeed, Illich had never before experienced this discrepancy. Illich Dep. at 68-79. His suspicion that something was amiss was confirmed by the suspect's behavior. Bennett was "insistent" that he was wanted for violation of probation. "Bennett . . . appeared convinced that there should be a warrant for himself." Illich Dep. at 18, 56-57. But in tension with his certitude about his surrender, Bennett was vague and evasive about his crimes and the nature of his probation violation. Illich Dep. at 17, 19, 28-30, 56; See, e.g., id. at 30. ("He said, `Ah, I just got myself in a little trouble.' That was the extent of what I was able to elicit out of him."); id. at 19 ("I couldn't get anything out of him as far as what he said to his probation officer. He would not elaborate on what he had been on probation for."). Bennett's surrender, coupled with his evasiveness about his criminal offense, led Illich to conclude that he was a "wanted person." Illich Dep. at 28, 30-31.

Illich telephoned Constable Bosch to tell him that the warrant could not be found and that he did not need to pick up Bennett. Illich also asked the constable to check among the constable warrants, or the warrants maintained by a constable and issued by a district justice. Illich apparently told Bennett about the difficulties confirming the warrant, and Bennett's demeanor changed noticeably....