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DONNA M. HANSELL, et al., Appellants
v.
THE CITY OF ATLANTIC CITY et al. Defendant/Third-Party, Plaintiff
v.
LAWRENCE JAMES D'ALESSANDRO, Third-Party Defendant
NO. 01-2908
46 Fed. Appx. 665
July 22, 2002, Argued
NOTICE:
RULES OF THE THIRD CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Appellants Donna Hansell, Carl Christopher Hansell, Shannon D'Alessandro,
Vincent D'Alessandro, Larry D'Alessandro Jr., and Christopher Hansell,
plaintiffs in the District Court, appeal the grant of summary judgment to
appellees City of Atlantic City, Nicholas Rifice, and Kirk Sutton. Because we
write for the parties who are familiar with the facts, we need not review them
in any detail.
The suit filed by plaintiffs
arose out of an incident in which Larry D'Alessandro Sr., Donna Hansell's
former husband, shot his way into the Hansell home and briefly held hostage
Shannon D'Alessandro (the daughter of Larry D'Alessandro, Sr. and Donna
Hansell), Carl Christopher Hansell and Christopher Hansell, Donna Hansell's
current husband and their son. At the time, Larry D'Alessandro was a member of
the Atlantic City Police Department (Police Department). Plaintiffs sued under 42 U.S.C. § 1983
(2002), alleging a state-created danger and failure to train or supervise
D'Alessandro and the other officers. They also included claims based on New
Jersey state tort law.
Plaintiffs originally also sued several individual Atlantic City police
officers, but all were dismissed other than former Chief of Police Nicolas
Rifice and former Internal Affairs Sergeant Kirk Sutton. Defendant, the City of
Atlantic City, represents the Police Department. The defendants moved for
summary judgment, which the District Court granted. This timely appeal
followed.
The
District Court had jurisdiction under 28 U.S.C. § 1331, 1343, and 1367 (2002),
and this court has jurisdiction pursuant to 28 U.S.C. § 1291 (2002).
II.
After reviewing the briefs and the record, and hearing oral argument, we
conclude that we must affirm. Plaintiffs' principal argument is based on the
state-created danger theory asserted under § 1983. Under that theory, as set forth
in Kniepp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51
F.3d 1137, 1152 (3d Cir. 1995)), plaintiffs must show that "(1) the harm
ultimately caused was foreseeable and fairly direct; (2) the state actor acted
in willful [*667] disregard for the safety of the plaintiff; (3) there existed
some relationship between the state and the plaintiff; (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." In a later refinement of
the second prong of that theory, we required plaintiffs to show that "the
state's actions must evince a willingness to ignore a foreseeable danger or risk." Morse v. Lower Merion
School District, 132 F.3d 902, 910 (3d Cir. 1997).
In this case, plaintiffs contend
that the fact that D'Alessandro was permitted to retain his service revolver,
which he used to effect the hostage taking, provided the element of
state-created danger, as did the Police Department's failure to properly
investigate complaints of domestic violence
against D'Alessandro. However, although plaintiff Donna Hansell points
to several instances in which she notified a defendant of some domestic
disturbance, those instances were spread over a period of time and were
unspecific. The most specific, as well as most recent, reported incident (and
it did not involve Ms. Hansell) appears to have been negligently overlooked by defendant Sutton,
who was carrying a heavy workload. We thus conclude that the defendants were
not sufficiently notified of the danger to the plaintiffs for the hostage
taking to be considered foreseeable under the state-created danger theory. The
plaintiffs' claim under the state-created danger theory under § 1983 thus fails.
Regarding the claim on the
failure to train under § 1983, after being provided with extensive discovery
the plaintiffs can only point to the Police Department's handling of the
complaints against D'Alessandro. This one case fails to show a pattern or practice
of ignoring domestic violence complaints against police officers. Although we
are concerned as to how acts of domestic violence by police officers are
treated by the Police Department, plaintiffs have not shown that the City of
Atlantic City displayed "'deliberate indifference' to the rights of
persons with whom [its] employees will come into contact," namely, victims
of acts of domestic violence by police officers. Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (quoting City of Canton v.
Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)).
Therefore, plaintiffs have not provided sufficient evidence to support a claim
under § 1983 for failure to train or supervise.
Finally, because the injuries
alleged were psychological rather than physical, plaintiffs did not suffer
compensable injuries under the New Jersey Tort Claims Act, N.J. Stat.
Ann. § 59:9-2(d) (West 2002), as interpreted by the New Jersey courts. Ayers v. Township of Jackson, 106 N.J. 557,
525 A.2d 287 (N.J. 1987).
III.
For
the reasons set forth above, we will affirm the District Court's grant of
summary judgment to the City of Atlantic City, Nicolas Rifice and Kirk Sutton.
/s/
Dolores K. Sloviter
Circuit Judge