Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-16-2009
Estate of Omayra Sob v. City of Jersey City
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1889
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"Estate of Omayra Sob v. City of Jersey City" (2009). 2009 Decisions. Paper 1181.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1889
ESTATE OF OMAYRA SOBERAL, DECEASED;
RAFAEL SOBERAL, INDIVIDUALLY AND AS ADMINISTRATOR
AD PROSEQUENDUM OF THE ESTATE OF OMAYRA SOBERAL;
GIOVANNI ALBERTO GERMOSEN; WILLIAM GONZALEZ
v.
CITY OF JERSEY CITY; JERSEY CITY POLICE DEPARTMENT;
JAMES CARTER, POLICE DIRECTOR; PETER BEHRENS, CHIEF OF POLICE;
YOUNGER, SGT.; ESTATE OF JULIO REYES, DECEASED;
HUDSON COUNTY PROSECUTOR'S OFFICE;
EDWARD J. DEFAZIO, HUDSON COUNTY PROSECUTOR;
JOHN DOES 1-25 AND JANE DOES 1-5;
PATROL OFFICER JOHN BACIGALUPO; JAMES BLAKE;
LIEUTENANT PAT NALBACH; INSPECTOR PAUL WALLEON,
Pat Nalbach, Paul Walleon and Fred Younger,
Appellants.
On Appeal from the United States District Court
for the District of New Jersey
( D. C. No. 3-04-cv-02788 )
District Judge: Hon. Joel A. Pisano
Argued on May 11, 2009
Before: AMBRO, ROTH and ALARCÓN*, Circuit Judges
(Opinion filed: June 16, 2009)
Robert E. Levy, Esquire (Argued)
Michael A. Cifelli, Esquire
Laura M. Miller, Esquire
Scarinci & Hollenbeck, LLC
1100 Valley Brook Avenue
Lyndhurst, NJ 07071
Counsel for Appellants
John S. Furlong, Esquire (Argued)
Furlong & Krasny
820 Bear Tavern Road
Mountain View Office Park, Suite 304
West Trenton, NJ 08628
Counsel for Appellees
OPINION
ROTH, Circuit Judge:
Appellants—Lieutenant Pat Nalbach, Inspector Paul Wolleon, and Sergeant Fred
Younger—appeal from the portion of the order of the District Court denying summary
judgment based on their assertion of qualified immunity in an action brought by
*Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
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Appellees—the Estate of Omayra Soberal, et al. Because the parties are familiar with the
tragic facts, we will describe them only as necessary to explain our decision. For the
reasons discussed below, we will vacate that portion of the order of the District Court and
remand this case to the District Court.
Under the collateral-order doctrine, we have jurisdiction over this interlocutory
appeal of the portion of the District Court’s order denying summary judgment based on
qualified immunity. See Burella v. City of Phila., 501 F.3d 134, 139 (3d Cir. 2007). This
Court’s jurisdiction, however, is limited to determining “‘whether the set of facts
identified by the district court is sufficient to establish a violation of clearly established
constitutional right.’” Rivas v. City of Passaic, 365 F.3d 181, 192 (3d Cir. 2004) (quoting
Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir. 2002)). We exercise plenary review
over the District Court’s denial of summary judgment and assess the record using the
same standard that guided the District Court. E.g., Rivas, 365 F.3d at 193.
Appellants asserted qualified immunity to defend the Estate’s claim that they
violated Omayra Soberal’s Fourteenth Amendment substantive due process right to be
free from state-created danger. The doctrine of qualified immunity protects government
officials “from civil liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Normally, the first step
in the qualified-immunity analysis is to determine “whether the facts that a plaintiff has
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alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson v.
Callahan, – U.S. –, 129 S. Ct. 808, 816 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). “Second, if the plaintiff has satisfied this first step, the court must decide
whether the right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Id.
The Estate’s claim fails step one—the facts do not show that Appellants violated
Soberal’s right to be free from state-created danger. The state-created danger doctrine is
“an exception to the rule that ‘the Due Process Clauses generally confer no affirmative
right to governmental aid, even where such aid may be necessary to secure life, liberty, or
property interests of which the government itself may not deprive the individual.’”
Walter v. Pike County, Pa., 544 F.3d 182, 192 (3d Cir. 2008) (quoting DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)). A plaintiff must
satisfy four elements for a successful state-created danger claim:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the
plaintiff was a foreseeable victim of the defendant’s acts, or a member of a
discrete class of persons subjected to the potential harm brought about by
the state’s actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created
a danger to the citizen or that rendered the citizen more vulnerable to
danger than had the state not acted at all.
E.g., Walter, 544 F.3d at 192 (quoting Bright v. Westmoreland County, 443 F.3d 276, 281
(3d Cir. 2006)). To satisfy the fourth element, we require a plaintiff to (1) show that a
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state official affirmatively acted to the plaintiff’s detriment and (2) establish direct
causation between the affirmative act and the result. See Phillips v. County of Allegheny,
515 F.3d 224, 236–37 (3d Cir. 2008); Kaucher v. County of Bucks, 455 F.3d 418, 432 (3d
Cir. 2006).
The Estate argues that Nalbach engaged in one affirmative act and that both
Wolleon and Younger engaged in two. None of the Appellants, however, affirmatively
acted to Soberal’s detriment. Nalbach did not affirmatively act to her detriment when he
instructed Officer Julio Reyes to stay away from her. Nalbach’s act did not make Soberal
“more vulnerable to danger.” See Bright, 443 F.3d at 281. Similarly, neither Wolleon nor
Younger affirmatively acted to Soberal’s detriment when they instructed Reyes to remain
downstairs, away from her. Appellants, moreover, did not affirmatively act by not
attempting to disarm Reyes until Soberal left the building: “We have squarely held that
‘failing to more expeditiously seek someone’s detention,’ and failing to arrest someone
who poses a threat, are not themselves affirmative uses of authority . . ..” Walter, 544
F.3d at 194 (quoting Bright, 443 F.3d at 284)). The Estate’s remaining arguments involve
Younger walking Soberal downstairs to meet police officers who were to drive her home.
Wolleon affirmatively acted, according to the Estate, by instructing Younger to walk
Soberal downstairs without knowing where Reyes was. But failing to locate Reyes was
inaction, which is not an affirmative act. See Walter, 544 F.3d at 194. The Estate’s
argument concerning Younger fails because Younger did not act to Soberal’s detriment
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by escorting her to officers who were to drive her home—away from Reyes.
The District Court erred in denying summary judgment based on qualified
immunity for Nalbach, Wolleon, and Younger. Accordingly, we will vacate the portion
of the order of the District Court denying Appellants’ motion for summary judgment and
remand this case to the District Court with instructions to enter judgment in their favor on
the Estate’s 42 U.S.C. § 1983 claims.
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