Jon Campisi Jul. 18, 2012, 8:41am

A federal judge in Harrisburg has ruled that a lawsuit filed against the Pennsylvania State Police by a man who faulted the cops for not arresting him - an alleged action that led to him setting his own home on fire - must be dismissed for failure to state a claim.

U.S. District Judge A. Richard Caputo, sitting in the Middle District of Pennsylvania, adopted a report and recommendation by Magistrate Judge Martin C. Carlson that recommended Todd D. Storm’s complaint be dismissed for failure to state a cognizable claim.

Storm, of Saylorsburg, Pa., filed a pro se amended complaint in April of this year against the state police from the Lehighton barracks alleging that the failure of state troopers to arrest him after he informed the officers that he planned to burn down his trailer home violated his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution.

Storm further alleged in his amended complaint that the state troopers were deliberately indifferent to Storm’s psychological and medical needs.

Mere days after the pro se civil action was filed, Magistrate Judge Carlson issued a report and recommendation that determined, in part, that Storm had failed to set out a cognizable violation of some constitutional right.

Carlson further determined that the troopers would be protected from suit due to sovereign immunity.

Carlson recommended that Storm’s suit be dismissed without prejudice and that the plaintiff should have 20 days to file a second amended complaint.

Storm subsequently objected to the report and recommendation.

Judge Caputo stated in his ruling that he declined to adopt Carlson’s report and recommendation insofar as it determined that the amended complaint was made solely against the Pennsylvania State Police and was therefore barred by the doctrine of sovereign immunity.

Caputo further found that Storm had indeed pleaded a claim against State Trooper Borger (no first name given).

However, Caputo went on to state that he agreed with Carlson’s conclusion that the amended complaint failed to meet the substantive standards required by law in that it doesn’t set forth a “short and plain” statement of a cognizable violation of some constitutional right.

“In particular, I find no basis in law for Storm’s argument that his non-arrest was a violation of substantive due process under the Fourteenth Amendment,” Caputo wrote.

Caputo also wrote that a police officer’s failure to arrest cannot substantiate a claim under the state-created danger doctrine.

“… It is alleged that Borger instructed Storm not to commit the crime and warned him that he would be subject to arrest if he did,” the ruling states. “Storm raises no arguments to defeat this analysis, but only reiterates his position that ‘Officer Borger should have known as any reasonable person would have known that I was a danger to [himself] and others.’”

Caputo determined that this is not enough under the law to impose liability on an officer, and without specific allegations that the troopers undertook affirmative actions to leave Storm worse off than they found him, there can be no claim for substantive due process.

Caputo also wrote that contrary to Carlson’s recommendation, he finds that an amendment on Storm’s due process claim would be futile, since the allegations make clear that the troopers did nothing, “and such inaction cannot be the predicate for a due process claim as a matter of law.”

The judge dismissed the action with prejudice and marked the case closed.

Storm’s lawsuit followed a May 15, 2011, incident in which he fell off of his neighbor’s deck in the Birchwood Park Trailer Park, which caused him to break his nose and aggravate pre-existing conditions.

At the time of his fall, Storm had not been on his antidepressant prescription medication for about two weeks.

These factors led to what Storm called a “psychotic episode,” in which he threatened to burn down his own home, a promise he purportedly made good on.

While Storm admitted that the officers threatened him with arrest if he carried out his act, he was never, in fact, placed in police custody.

Storm later awoke in his burning trailer, an act he claimed he had committed himself.

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