Fitz Green v. City of Philadelphia, P/o John Doe I & P/o John Doe Ii

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-2368
FITZ GREEN,
Appellant
v.
CITY OF PHILADELPHIA,
P/O JOHN DOE I & P/O JOHN DOE II;
EVELYN WHITE; OFFICER WILLIAMS;
OFFICER WHITAKER
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 02-4433)
District Court: Hon. Ronald L. Buckwalter
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 12, 2004
Before: SCIRICA, Chief Judge,
ROTH and McKEE, Circuit Judges.
(Filed: March 10, 2004)
OPINION
McKEE, Circuit Judge.
Fitz Green argues that the district court erred when it granted the motion of
defendants City of Philadelphia, Officer Williams and Officer Whitaker to dismiss the
claims Green brought under 42 U.S.C. § 1983. For the reasons that follow, we will
affirm.
I.

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1 We have jurisdiction over this motion to dismiss under 28 U.S.C. § 1291. Lorenz v.
CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993). We exercise plenary review over the grant
of a motion to dismiss; such review means that we “accept all factual allegations in the
complaints and all reasonable inferences to be drawn therefrom in the light most
favorable to the plaintiffs. We may affirm only if it is certain that no relief could be
granted under any set of facts which could be proven.” Id.
2
Because we write only for the parties, it is not necessary to recite the facts of this
case in detail. It is sufficient to note that Green was shot by Evelyn White on July 4,
2000, about a month after Philadelphia Police Officers Williams and Whitaker
investigated a “domestic dispute” involving Green and White. During this investigation,
Green told them that White had threatened him with a gun and had violent tendencies.
The officers took White’s gun, but later returned the gun to her although Green alleged
that it was neither licensed nor registered.
Green subsequently filed a claim against White, the City of Philadelphia and the
police officers. At issue here are his claims against the last three defendants (“City
defendants”) under 42 U.S.C. § 1983 for violating his Fourteenth Amendment substantive
due process rights. He alleges that White harmed him due to state-created danger and
municipal policy.
II.
As noted, Green appeals two claims. Each is considered separately. 1
A. State-created danger
Green argues that the police officers violated his due process rights by creating the
danger he would be shot by White when they returned the gun to her. To prevail, Green

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had to prove that the state had an affirmative duty to protect him from White. The state is
typically not required to “protect the life, liberty, and property of its citizens against
invasion by private actors” because the due process 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.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989).
Under the “state-created danger exception,” however, the state can be responsible for an
injury by a private party if the state plays a part in the danger or renders the plaintiff more
vulnerable to such danger. Id. at 201; Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
907 (3d Cir. 1997).
We look to four factors to decide if the state-created danger exception is met: “(1)
the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in
willful 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.”
Id. at 908; see also Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). The district
court held that Green failed to meet the fourth factor, and we agree.
The Supreme Court held that the fourth factor was not met in a similar situation in
DeShaney. There, a local services agency temporarily took custody of a child away from
his abusive father, then returned the child to his father while conducting home visits for
six months. 489 U.S. at 201. About nine months after the home visits ended, the father
killed the child. Id. The DeShaney Court stated:

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That the State once took temporary custody of [the child] 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 all; the State
does not become the permanent guarantor of an individual’s safety by having once
offered him shelter. Under these circumstances, the State had no constitutional
duty to protect [the child].
Id.
The police officers similarly took temporary control of a volatile and dangerous
situation between Green and White by holding her gun. They then returned the gun to her
when they believed the situation was under control. About a month later, White shot
Green in the leg with the gun. When the officers returned the gun to White, it placed
Green in no worse position than he would have been in without their temporary
intervention, and that temporary intervention did not create any guarantee of Green’s
future safety.
In addition, the shooting here was too remote from the officers’ allegedly wrongful
acts to establish proximate cause. See Sheets v. Mullins, 287 F.3d 581, 588 (6th Cir. 2002)
(holding that a child’s death was too remote from a police officer’s investigatory visit
four days earlier). Accordingly, the district court properly found that the City defendants’
action did not create any danger to Green, and denied his claim under the state-created
danger theory.
B. Municipal policy claim
Green also argued that the City violated his due process rights because it failed to
“implement the common sense policy” that police officers keep all unregistered firearms

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confiscated from unlicensed owners during domestic disturbance investigations where the
officers are told that the owner had previously used the firearm to assault the victim. The
district court held that the City could not be liable for a Fourteenth Amendment violation
unless individual police officers were found liable. There is no such liability here
because the “state-created danger” claim was meritless.
Under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), a
city can be liable for an unconstitutional policy or custom carried out by its employees.
However, a claim for damages under this theory generally cannot lie unless an individual
employee is found to have violated constitutional rights. City of Los Angeles v. Heller,
475 U.S. 496, 499 (1986) (per curiam). There is an exception, however, when a claim
against a municipal entity is based on a different theory requiring lesser intent than the
claim against the municipal employee(s). Fagan v. City of Vineland, 22 F.3d 1283, 1292
(3d Cir. 1994).
Inasmuch as Green bases the City’s liability on the officers’ failure to retain the
confiscated gun, the officers’ liability is the predicate for the City’s liability. The district
court properly found that Heller controlled and dismissed this claim against the City.
III.
For all of the above reasons, we will affirm the district court’s judgment.

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