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. e du/thir dc ir c uit_2002/170NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-2275

CHARLES M. PAHLER, Appellant

v.

CITY OF WILKES-BARRE; THOMAS D. McGROAR TY, individually and as Mayor of the City of Wilk es-Barre; WILLIAM J. BARRETT, individually and as Ch ief of Police in the City of Wilkes-Barre

On Appeal from the United States District Court for the Middle District of Pennsylvani a (D.C. Civil No. 00-cv-01143) District Judge: Hon. William J. Nealo n

Submitted Under Third Circuit LAR 34.1( a) February 7, 2002

Before: SLOVITER, AMBRO, Circuit Judges, and SHADUR, District Judge

(Filed: March 12, 2002)

OPINION OF THE COURT SLOVITER, Circuit Judge.

Charles Pahler appeals from the District Court 's dismissal of his complaint brought pursuant to 42 U.S.C.  1983 against the City of Wilkes-Barre ("City"), its Mayor, Thomas D. McGroarty ("McGroarty"), and its C hief of Police, William

Barrett ("Barrett"), alleging a violation of the substantiv e due process component
of the Fourteenth Amendment. Pahler, a City police office r, was ordered to participate in a drug raid during which he sustained severe injuries from a buckshot from a shotgun of a fellowpolice officer who neglected to set the safety mech anism on the shotgun.

The officer who discharged the shotgun was a member of the Emergenc y Services Unit ("ESU")
of the Police Department, but the ESU was not used in the raid. Pahler claims that defendants violated his Fou rteenth Amendment right
to due process by requiring him to participate in a high r isk drug raid with officers who were not adequately trained and by failing to use the ESU de spite the fact that it comprises "officers who volunteered their candidacy, were the n specially selected as
members of the ESU, and were then to be specially and continually trained to manage highly dangerous incidents of violence arising in the City." App. a t 3. Pahler was not a
member of the ESU and his duties predominantly consisted of patro lling a specific geographical area in a marked Department vehicle. Pahler's claim implicates two distinct legal t heories: the "statecreated danger" theory and the "failure to train" theory. Pahler n ow challenges the District Court's decision, arguing (1) that the District Court commi tted error by not accepting as true the factual allegations in the complaint and (2) that t he District Court erred by concluding Pahler failed to plead a cause of action under a "f ailure to train" theory. For the reasons that follow, we will now affir m. I. In dismissing Pahler's complaint, the District Court held that
"state-created danger" substantive due process claims are "inappli cable to law enforcement personnel who are injured during the course of their employme nt." App. at 61 (citing Collins v. City of Harker Heights, 503 U.S. 115 (1992); Ruther ford v. City of Newport News, 919 F. Supp. 885 (E.D. Va. 1996), aff'd, 107 F.3d 867 ( 4th Cir. 1997); Hartman v. Bachert, 880 F. Supp. 342 (E.D. Pa. 1995)). The District Co urt also concluded that even if the "state-created danger" theory were applicable to Pa hler's claims, defendants' alleged failure to use the ESU to conduct a raid on a suspe cted drug dealer's residence was not "'deliberatively indifferent' behavior that shocks the conscience constituting a substantive due process violation." App. at 62. Finally, the District Court determined that even if Pahler's "state-created danger" theory is found to apply to law enforcement officers whosuffered employment-related injuries, McGroarty and Barrett are entitled

to the defense of qualified immunity. App. at 63. The District Court also dismissed Pahler's Fou rteenth Amendment substantive due process "failure to train" claim. The court held t hat Pahler "has neither identified the specific training the [C]ity should have offered wh ich would have prevented his injury, nor has he established that such training was not p rovided." App. at 65. In addition, the District Court noted that Pahler's complaint appear s to support the view
that the individual who engaged in the injurious act has bee n trained in the use of shotgun, but merely neglected to set the safety device. Accordi ng to the District Court, such conduct does not rise to the level of a constitutional viol ation. App. at 65 (citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) ("opi ning that 'liability for negligently inflicted harm is categorically beneath the thresho ld of constitutional due process'")).
II. This court's review of a district court order dismissing a complaint pursuant to Rule 12(b)(6) for failure to state a claim upon whi ch relief may be granted is plenary and we apply the same test as the District Court. See Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183 (3d Cir. 2000). Although our standard of review requires us to "accept as true all factual allegations in the comp laint, we need not accept as true 'unsupported conclusions and unwarranted inferences .'" Id. at 183-84 (quoting City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)). A. State-Created Danger Generally, the state has no affirmative obliga tion to protect its citizens from the violent acts of private individuals. One of the ex ceptions to this general principle is the "state-created danger" theory of liability, which w e adopted in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). We applied the four-part test articulated in Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), which holds a state actor liable if: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in will ful disregard for the safety of the plaintiff; (3) there existe d 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 cr ime to occur.Kneipp, 95 F.3d at 1208 (quoting Mark, 51 F.3d at 1 152).

Thereafter, in County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court analyzed the overarching framework of substan tive due process. We held in Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999), that Lewis requires a court, in all substantive due process cases, to determine if the state actor's behavior shocks the conscience. The precise degree of wrongfulness to reach the "conscienceshocking" level depends upon the circumstances of a particular case

. In this case, the District Court held that the second factor of the Kneipp test has been modified by the "shock the conscience" standar d, and what rises to that level will ultimately depend on the factual scenario of the ca se at hand. We agree. Accordingly, a plaintiff seeking to recover under a "state-created danger" theory must
show that the actor acted with a willful disregard for or deliberate in difference to plaintiff's safety that rises to the level of shocking the conscience. The District Court stated that regardless of t he degree of culpability that should be applied, the state-created danger theory arising ou t of the substantive due process clause of the Fourteenth Amendment does not apply to the p laintiff while functioning as a police officer. App. at 63. The court also stated that " [e]ven if the state created danger theory could be applied to police officers, the conduct of the defendants would not support a finding that shocks the conscience." App. at 63. Because we agree with the latter, we need not decide whether the "state-created danger" theory applies to a police officer. Failure to utilize the ESU to raid a suspected drug -dealer's residence can hardly be described as "deliberately indifferent" behavior th at shocks the conscience constituting a substantive due process violation. As the Supreme Court has stated, "[t]he Due Process Clause 'is not a guarantee against incorrect or ill -advised personnel decisions.'" Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992) (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)). Pahler argues that the District Court acted in appropriately in deciding that the defendants' actions did not constitute deliberately indifferent behavior
that shocks theconscience because of the lack of an established re cord. He hypothesizes

that discovery could reveal that the defendants deliberately chose not to utilize the ESU because they did not want to allocate the additional funds necessary to deploy the ESU. In Collins, the Supreme Court cautioned: Decisions concerning the alloca tion of resources to individual programs, . . . and to particular aspects of those programs, such as the training . . . of employees, involve a host of policy choices that must be made by locally elec ted representatives, rather than by federal judges interpretin g the basic charter of Government for the entire country.

503 U.S. at 128-29. Moreover, we note that Pahler' s injury was not caused by the dangers of the drug raid but by the negligence of a fellow police officer. Accepting all of the allegations of the complaint, we agree with the District Court that nothing suggests that defendants acted with indifference that shocks the conscience. Accordingly, Pahler's substantive due process claim under the "s tate-created danger" theory must fail. B. Failure to Train Pahler's second claim is based on the defendan ts' alleged failure to train. A municipality may be held constitutionally liable un der  1983 for failing to properly train its officers. See City of Canton v. Harris, 489 U. S. 378, 387 (1989); Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). However, inadequate police training may serve as the basis for  1983 liability only where the failure to train "am ounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, 489 U.S. at 388. Additionally, "adequately trained officers occasionally make mistakes; the fact that they do says little about t he training program or the legal basis for holding the city liable." Id. at 391. "[S]tringent standards of culpability and caus ation must be applied"
when an injury is caused by an employee rather than the mun icipality. Reitz, 125 F.3d at 145. Thus, "[a] plaintiff pressing a  1983 claim must identify a failure to provide specific training that has a causal nexus with their injurie s and must demonstrate
that the absence of that specific training can reasonably be said to reflect a deliberate indifference towhether the alleged constitutional deprivations occ urred." Id.

Pahler has not pled any of the necessary eleme nts to state a claim upon which liability may be imposed against the defendants und er the failure to train theory. In fact, Pahler stated in his complaint that the officer who engaged in the injurious act merely neglected to set the safety device. Simply put, Pa hler makes no allegation that establishes his injuries were cased by the defendants' delibera tely indifferent failure to train the City's officers. As unfortunate as the mistake was , such a mistake cannot form the basis
of  1983 claim for "failure to train."
III. Because we find that District Court did not er r in dismissing
Pahler's  1983 claim, we will affirm the judgment of the District Court.

__________________________

TO THE CLERK:

Please file the foregoing opinion.

/s/ Dolores K. Sloviter Circuit Judge