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A federal appeals court has revived a state-created danger suit stemming from a love-triangle triple murder committed by a fired Allegheny County 911 operator who persuaded his co-workers to provide information that allegedly would assist him in locating his ex-girlfriend’s new boyfriend, both of whom he later killed. In Phillips v. County of Allegheny, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that the mother of the slain boyfriend had alleged valid claims against the two 911 operators who provided the information. The mother had alleged “sufficient facts, which, if proven, would demonstrate that these defendants were deliberately indifferent” to the results of their actions, the opinion said. According to court papers, Michael Michalski was working as a 911 operator in October 2003 when his supervisor, Daniel Nussbaum, learned that Michalski had misused his position to conduct database searches in an attempt to locate the whereabouts of his former girlfriend, Gretchen Ferderbar, and her new boyfriend, Mark Phillips. Nussbaum placed Michalski on a one-week suspension, but allowed him to remain on the job for a week. The day before the suspension took effect, the suit alleges, Michalski again used the databases without authorization to access personal information on Phillips, including his vehicle and license plate registrations, and was fired. The civil rights suit alleges that Michalski later asked two other 911 operators – Danielle Tush and Brian Craig – to give him the unauthorized information on Phillips and Ferderbar, and that they complied. Attorneys Philip A. Ignelzi and Michael A. Murphy of Ogg Cordes Murphy & Ignelzi in Pittsburgh alleged in the suit that Michalski told both Tush and Craig about the circumstances of his firing. Tush and Craig were also aware of Michalski’s mental state, the suit alleges, because Michalski told them that he “had nothing left to live for” and that Ferderbar and Phillips were going to “pay” for putting him in such a situation. Later on the same day that he received the information from Tush and Craig, the suit says, Michalski shot and killed Phillips and then shot and killed Ferderbar and her sister. Michalski later pleaded guilty to all three murders and is currently serving three life sentences, according to court records. In the federal civil rights suit, Jeanne Phillips, as administratrix of her son’s estate, sued numerous defendants, including Allegheny County, Nussbaum, Tush and Craig alleging a federal claim under Section 1983 and state law claims of wrongful death and survivorship. But U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania dismissed the suit, saying the plaintiff failed to satisfy the four-part test for proving a state-created danger claim. To succeed on such a claim, Schwab said, the plaintiff must show that the harm ultimately caused to the plaintiff was foreseeable and fairly direct; that a state-actor acted in willful disregard for the plaintiff’s safety; that there was some relationship between the state and the plaintiff; and that the state actor used his authority to create an opportunity for danger that otherwise would not have existed. Schwab found that Phillips’s claims failed to satisfy the first, second and fourth prongs of the test. Now the 3rd Circuit has reversed, finding that the test was met for the two 911 operators who provided Michalski access to unauthorized information. The appellate court found that Schwab was correct in dismissing claims against the supervisor, Nussbaum, because the suit did not allege any “affirmative” acts by him that led to the murders. U.S. Circuit Judge Richard L. Nygaard found that the only allegations against Nussbaum were that he failed to notify the proper authorities when he became concerned that Michalski was “volatile” and might be prone to violence. But Nygaard found that Schwab nonetheless erred in dismissing the claim with prejudice, and instead should have allowed Phillips an opportunity to amend the claim to cure that defect. “It does not matter whether or not a plaintiff seeks leave to amend. We have instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile,” Nygaard wrote in an opinion joined by Judges D. Michael Fisher and Jane R. Roth. Turning to the claims against the 911 operators, Tush and Craig, the appellate court found that all four prongs of the state-created danger test were satisfied. “The complaint alleges that after Tush and Craig provided Michalski with confidential information, Michalski used that information to hunt down and kill Mark Phillips,” Nygaard wrote. “Phillips has sufficiently alleged that Tush and Craig undertook affirmative actions which worked to Mark Phillips’ detriment by exposing him to danger and that there is a direct causal relationship between their harm and the defendants’ actions,” Nygaard wrote. Schwab erred, Nygaard found, by holding that Phillips had failed to allege that Tush and Craig “rendered Mark Phillips more vulnerable to danger” because the suit failed to allege where the shooting took place. In dismissing the suit, Schwab reasoned that if the shootings did not occur at Mark Phillips’ residence, the unauthorized information provided by Tush and Craig did not render him vulnerable to danger. “This was simply wrong,” Nygaard wrote. “Where Mark Phillips was killed is not dispositive. At this preliminary pleading stage, it is reasonable to infer that Michalski could have gained relevant information at Mark Phillips’ house as to his whereabouts, which could have directly assisted Michalski in stalking and killing him.” Schwab also erred, Nygaard found, in holding that since there were “no allegations in the complaint that Michalski had a history of violence or, if he did, that any of the defendants were aware of this history of violence,” the harm caused by Michalski was not foreseeable. “We have never held that to establish foreseeability, a plaintiff must allege that the person who caused the harm had a ‘history of violence.’ Indeed, these types of cases often come from unexpected or impulsive actions which ultimately cause serious harm,” Nygaard wrote. Instead, Nygaard said, to adequately plead foreseeability, “we require a plaintiff to allege an awareness on the part of the state actors that rises to level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm.” Such an awareness “was clearly alleged” as to Tush and Craig, Nygaard found, because the suit alleges that both were aware that Michalski had been suspended for his own attempts to access unauthorized information and that the two provided information that assisted Michalski in locating Phillips. The suit alleged that Tush and Craig were also aware that the relationship between Ferderbar and Michalski had recently ended and that Michalski was in a distraught mental state as a result, Nygaard noted. Nygaard also found that Tush and Craig had allegedly engaged in an “affirmative act.” “Unlike most state-created danger cases, Tush and Craig did not have to make a decision at all; they could have refused Michalski’s inappropriate requests and terminated his telephone call immediately,” Nygaard wrote. Allegheny County’s lawyer, Stephen J. Poljak of Marshall Dennehey Warner Coleman & Goggin’s Pittsburgh office, could not be reached for comment on the ruling. (Copies of the 44-page opinion in Phillips v. County of Allegheny , PICS No. 08-0185, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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