LEVIN H. CAMPBELL, Chief Judge.
On December 20, 1979, Patricia Gilmore was murdered by Bradford Prendergast, a Billerica House of Correction inmate, while Prendergast was on leave from the House of Correction on a two-day furlough. Plaintiff-appellant Joseph P. Gilmore, administrator of the estate of Patricia Gilmore, brought this civil rights action under 42 U.S.C. § 1983 (1982) in the United States District Court for the District of Massachusetts against defendants-appellees Middlesex County, the Middlesex County Commissioners, the Sheriff of Middlesex County, the Superintendent of the Billerica House of Correction, and the Medical Director and two assistants at Bridgewater State Hospital. The complaint alleges that various acts and omissions of the defendants proximately caused Gilmore's murder by Prendergast, depriving her of life without due process of law in violation of the fourteenth amendment. The complaint further alleges that the defendants are liable for Gilmore's death under state tort law. Upon cross-motions for summary judgment, the district court awarded summary judgment to the defendants on the section 1983 claims, and declined to exercise jurisdiction over the pendent state law claims. Estate of Gilmore v. Buckley, 608 F.Supp. 554 (D.Mass.1985). We affirm.
The relevant facts, essentially undisputed, may be summarized as follows. On July 2, 1979, acting on a criminal complaint filed by Patricia Gilmore, the Norfolk County District Attorney charged Bradford Prendergast with threatening her life in violation of Mass.Gen.Laws ch. 275, § 2 (1984).
Shortly thereafter, on August 17, 1979, defendant Dr. Robert A. Fein, a clinical and forensic psychologist at Bridgewater, filed a superseding report with the court concluding that, "based on additional information," Prendergast was "mentally ill" and that "failure to hospitalize [him] in strict security would constitute a likelihood of serious harm to himself as well as others." The "additional information" referred to by Fein was a medical report on Prendergast from McLean Hospital in Belmont, Massachusetts, where Prendergast had voluntarily committed himself between February and April of 1979, and been treated by Fein and others. Elsewhere in his report to the court, Fein suggested that "Prendergast's recent medical history indicates that he is an individual with high potential for doing serious, if not murderous, harm to at least one potential victim [Gilmore] and to himself." Fein recommended that, if found guilty, Prendergast be returned to Bridgewater for further hospitalization and recommendations.
On August 20, 1979, Prendergast was found guilty of threatening Patricia Gilmore under Mass.Gen.Laws ch. 275, § 2, and returned to Bridgewater to aid the court in sentencing pursuant to Mass.Gen.Laws ch. 123, § 15(e) (1984).
On September 28, 1979, Koson reported to the court as follows:
At his deposition, Koson testified that he considered the various opinions and impressions contained in the McLean record and Prendergast's Bridgewater file to be in conflict and that, without an examination, he believed it would have been both unlawful and unethical to recommend that Prendergast be committed.
Prendergast was discharged from Bridgewater on September 28, 1979, and sentenced to six months' incarceration at the Billerica House of Correction. On October 18, Steven Alari, a counselor at Billerica who had worked with Prendergast in a department store some seven or eight years previously, filled out an application on Prendergast's behalf for jail credits for the time that Prendergast had spent at Bridgewater. Towards the end of October, Prendergast asked Alfred Donovan, a "crisis intervention worker" at Billerica, to submit his parole application to the Middlesex County Commissioners, who sat as the county parole board. In early November, Prendergast was granted 58 days of jail credit for part of the time he spent at Bridgewater, and his institutional discharge date was moved up from March 10 to January 12, 1980.
On November 5, 1979, the prisoner "classification" or "contract board" at Billerica reviewed the intake record on Prendergast. The intake worker who was handling Prendergast's case informed the contract board of Prendergast's prior hospitalization at McLean and Bridgewater and that, in addition to the charge of threats for which he was currently incarcerated, there were three other incidents of threatening or harassing behavior on his probation records. However, the contract board was not able to obtain Prendergast's McLean or Bridgewater records, because he refused to consent to their release. Furthermore, the intake worker informed the contract board that she had been unable to obtain any information concerning Prendergast from the Stoughton District Court, because
On November 7, 1979, the contract board assigned Diane Levesque to be Prendergast's counselor, and approved his application for a one-day furlough to be taken on November 22. On November 19, Prendergast's application for a 48-hour release furlough was granted for December 7-9. Prendergast completed both of these furloughs without incident.
On December 7, 1979, the Middlesex County Commissioners denied Prendergast's petition for parole on the basis of a report from Thomas Cavanaugh, the Chief Probation Officer of the Stoughton District Court. The Cavanaugh report, which was concurred in by a state district court justice, related the concerns which Dr. Fein had expressed to the court concerning Prendergast's recent medical history and likely dangerousness. The County Commissioners forwarded the parole file, which included the Cavanaugh report, to Billerica via interoffice mail.
On December 17, 1979, Prendergast's parole file was received at Billerica by Alfred Donovan, who was handling the processing of parole requests at the time. Donovan recorded the denial of Prendergast's parole and reported the contents of the Cavanaugh report to Steven Alari, who he mistakenly thought was Prendergast's counselor. The Cavanaugh report was not brought to the attention of anyone else at Billerica.
In late November or early December, Prendergast received an additional 21 days of jail credit for the remainder of the time he spent at Bridgewater prior to sentencing, and his institutional discharge date was moved up to December 22, 1979. Prendergast's third furlough was approved for a 48-hour period running from December 19-21. Prendergast was released on furlough on December 19, 1979, and the following day he kidnapped and murdered Patricia Gilmore.
The district court granted summary judgment in favor of the defendants on plaintiff's section 1983 claims. The court held that the undisputed facts, even when viewed most favorably to the plaintiff, did not make out a case under section 1983.
The underlying question is whether the failure of state psychiatrists, county prison officials and other county employees to protect Patricia Gilmore from attack by a private third party is actionable under 42 U.S.C. § 1983 (1982).
A growing number of courts, including the Supreme Court in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), have wrestled with this issue in analogous situations, answering the question whether there has been constitutional violation with, for the most part, a qualified "no."
In Martinez, the victim was tortured and murdered by a parolee, who had previously been convicted of attempted rape, five months after the parolee was released from prison. A section 1983 action was brought against the state officials responsible for his release. In denying relief, Justice Stevens wrote for a unanimous Court,
444 U.S. at 284-85, 100 S.Ct. at 559 (citations omitted) (emphasis in original).
The reason a state's failure to provide adequate protection does not normally violate the due process clause was suggested by the Seventh Circuit in Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982). After emphasizing that section 1983 imposes liability only if there is a deprivation of a constitutional right, the court stated,
686 F.2d at 618 (citation omitted). This, we agree, is the nub of the issue.
It would seem from what we have just said that we should affirm without more. However, both the Supreme Court in Martinez and various circuit courts, including the Seventh Circuit, have indicated that in some special circumstances, where a state has assumed a "special custodial or other relationship" in respect of a particular person, the state's failure to protect that person might implicate the due process clause.
In the vast majority of cases which have found the existence of a "special relationship" between the state and the plaintiff giving rise to an affirmative duty of care or protection under the fourteenth amendment, the plaintiff has been in state custody or care at the time of the alleged injury. Thus, it has been held that the fourteenth amendment bars the states from acting
Generally speaking, all of these cases can be read for the proposition that, if the state takes a person into custody or otherwise assumes responsibility for that person's welfare, a "special relationship" may be created in respect of that person, and the fourteenth amendment imposes a concomitant duty on the state to assume some measure of responsibility for the person's safety and well-being. See also Ellsworth v. City of Racine, 774 F.2d 182 (7th Cir.1985) (suggesting that municipality may assume a "special relationship" in respect of municipal employee by virtue of employment relationship, requiring municipality to provide police protection), cert. denied, ___ U.S. ___, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986).
In Martinez, the Supreme Court gave only vague hints as to what circumstances, if any, might create such a special relationship and render the state liable for a parolee's crime. It emphasized that Thomas had killed his victim five months after his release, implying, perhaps, that the long lapse of time could have made some difference in its analysis. It also emphasized that "the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger." Martinez, 444 U.S. at 285, 100 S.Ct. at 559. Finally it said, "We need not and do not decide that a parole officer could never be deemed to `deprive' someone of life by action taken in connection with the release of a prisoner on parole." Id. Beyond these remarks, the Court did not suggest what "special circumstances" limits there might be to its holding.
The above qualifications in Martinez do leave the door slightly ajar in the present case. Some of the instant defendants knew or should have known that Prendergast posed a special danger to Patricia Gilmore, as distinct from the public at large. Moreover, Gilmore was murdered but one day after Prendergast's release on furlough. In our view, however, whatever significance these factors may have as a matter of state tort law, they did not create a special relationship of constitutional dimension between the state and Gilmore. See Beard v. O'Neal, 728 F.2d 894 (7th Cir.) (fifth amendment due process clause did not impose affirmative duty on FBI informant to prevent police officer from murdering known victim), cert. denied, ___ U.S. ___, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984).
It is argued that because at least some of the defendants knew or should have known that Prendergast posed a special danger to Patricia Gilmore, they had a constitutional duty to protect her. But irrespective of any knowledge the state defendants had of the special danger that Prendergast posed to Gilmore or the temporal proximity between Prendergast's release on furlough and Gilmore's murder, the state did nothing to render Gilmore any more or less capable of defending herself from a violent attacker than any other member of the general public. Furthermore, even though Prendergast was legally in state custody while on furlough,
For there to be a special relationship implicating the fourteenth amendment, we believe the state must be more directly implicated than it was here in the events causing the victim's death — as, perhaps (although we need not decide), when the state, by exercising custody or control over the plaintiff, effectively strips her of her capacity to defend herself, or affirmatively places her in a position of danger that she would not otherwise have been in. Here, the state and county defendants did not have custody or control over Gilmore, nor did they condone, ratify or in any way instigate Gilmore's homicidal encounter. See, e.g., Jackson v. City of Joliet, 715 F.2d 1200, 1204-05 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984). Because there was no special relationship of constitutional dimension between Gilmore and the state, we hold that the plaintiff has failed to make out a violation of the fourteenth amendment and a claim under section 1983.
We recognize that a few courts have held or suggested that a state defendant's knowledge that a third party poses a special danger to an identified victim will alone support a claim for relief under section 1983.
Estate of Bailey v. County of York, 768 F.2d 503, 513 (3d Cir.1985) (Adams, J., dissenting).
Enormous economic consequences could follow from the reading of the fourteenth amendment that plaintiff here urges. Firemen
Because we conclude that the plaintiff has not stated a cause of action under section 1983, we need not address the defendants' argument that, following Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the existence of an adequate remedy at state law precludes the plaintiff's claims. Nor need we express any view as to whether any of the individual defendants' conduct was less than reckless or grossly negligent, or whether they might be entitled to the defense of qualified immunity.
Of course, our opinion expresses no view on the merits of the plaintiff's claims under the tort law of Massachusetts or any other state.
In turn, the "General Guidelines Governing Furlough" in effect at Billerica during the period in question provided in pertinent part that "[t]he decision to grant a resident a furlough as part of his classification plan" was to be based on a consideration of the following factors: offense, institutional performance, resident's ability to conduct himself responsibly while in the community, prior furlough history, past history of escapes, length of sentence, cases pending and/or warrants, judgment whether the resident can be trusted to return at the designated time and not commit any criminal acts while on furlough, the need for community reintegration, and ability to obtain an acceptable furlough sponsor.
This provision apparently required Donovan and Alari to notify their superiors of the Cavanaugh report; it is unclear, however, whether either Donovan or Alari knew that Prendergast had already applied and been approved for his third furlough at the time the report was received.
As the language of the statute indicates, section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694, n. 3, 61 L.Ed.2d 433 (1979).