The opinion of the court was delivered by: WOODS
Henry Woods, U.S. District Judge
On July 10, 1986, Larry Dean Robertson was arrested in Johnson County, Arkansas and charged with theft by receiving and felon in possession of a firearm. Robertson had previously been convicted of aggravated assault in the State of Mississippi and, at the time of his arrest in Arkansas, was wanted by Marshall County, Mississippi authorities on an outstanding felony charge. Robertson pled guilty to the Johnson County charge of felon in possession of a firearm, the theft count having been dismissed, and was sentenced to serve eighteen (18) months in a facility administered by the Arkansas Department of Correction.
On April 20, 1987, Robertson was granted an early release from custody as the result of the Arkansas State Board of Correction's invocation of the "Prison Overcrowding Emergency Powers Act of 1987," Act 418 of 1987. He was given a check for $ 25.00 and, in accord with Department of Correction policy, was transported to the Trailways Bus Station in Dumas, Arkansas because that was the nearest public transportation facility. Within the bus station was C & S Fabric, a store owned and operated by Laverne Sanderlin. On April 21, 1987, less than twenty-four (24) hours after his release, Robertson is alleged to have brutally murdered Laverne Sanderlin in her store. Robertson is presently standing trial for that crime in the state court.
The plaintiffs in this suit, representing the estate and family of Laverne Sanderlin and the taxpayers of the State of Arkansas, have filed their claim under 42 U.S.C. § 1983 seeking damages for wrongful death from members of the Arkansas State Board of Correction, and the Director and an employee of the Arkansas Department of Correction. Other claims have also been asserted under Arkansas tort law, Arkansas statutory law and the Arkansas Constitution.
It is the plaintiffs' contention that the defendants, by their collective action in releasing and transporting Robertson, deprived Laverne Sanderlin of her life and "liberty interest" in personal security without due process of law as required by the Fourteenth Amendment. See Ingraham v. Wright, 430 U.S. 651, 673-74, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977) (unjustified intrusions on personal security are within the scope of due process "liberty" interest). The issue here is whether, assuming all the allegations of the complaint to be true, the deprivations complained of give rise to a cause of action under 42 U.S.C. § 1983. The court finds that they do not.
To state a claim under § 1983 it must be alleged that (1) the conduct of a person acting under color of state law (2) deprived a person of rights, privileges or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1980). At the time in question Robertson was not in state custody nor was he acting on behalf of the state. The brutal acts of which the plaintiffs complain were committed, if at all, by a private individual.
Nonetheless, the plaintiffs seek to hold the defendants responsible for Robertson's alleged acts because they knew, or should have known, of Robertson's dangerous propensities but, in reckless disregard of the victim's interest in personal security, released him at her place of business anyway. The plaintiffs' argument is that a "special relationship" existed because of the defendants' knowledge and affirmative act of transportation, and that this relationship created a duty to protect or warn the victim.
Without dissent the court held that the action of the parolee could not be characterized as "state action" for the purpose of § 1983 liability. Three reasons were given for this decision. First, a period of five months had elapsed between the parolee's release and the victim's murder. Second, the parolee was in no sense an agent of the parole board and, third, the parole board was not aware the victim, as distinguished from the public at large, faced any special danger. However, the court went on to say that it did not decide "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." Martinez v. California, 444 U.S. at 284-85.
The plaintiffs have attempted to distinguish Martinez on its facts and argue that this is the type of case for which the Martinez court left the door to § 1983 liability open. They note particularly that less than twenty-four (24) hours elapsed between Robertson's release and the victim's murder, as opposed to five months in Martinez, and that Robertson was transported to the victim's place of ...