Full opinion text
MEMORANDUM NORTHROP, Senior District Judge. Pending before the Court is Defendants’ Motion to Dismiss (Paper No. 5). This motion is opposed (Paper No. 6). After a review of all briefs filed and in consideration of the arguments presented by counsel at hearing, the Court will grant in part and deny in part Defendants’ Motion to Dismiss. More specifically, the Court will deny Defendants’ motion to dismiss the Constitutional violations alleged in Counts I and II under the equal protection and substantive due process clauses of the Fourteenth Amendment. The Court also will deny Defendants’ motion to dismiss the state tort claims alleged in counts III and IV against Officer Johnson. The Court, however, will grant Defendants’ motion to dismiss Counts III and IV with respect to the City of Cambridge. I. Introduction Plaintiff Carol Pinder brings suit individually, and in her capacity as Personal Representative of the Estates of her three minor children. The Defendants in this case are Police Officer PFC Donald Johnson (“Johnson”) and the Commissioners of Cambridge (“Cambridge”). Defendant Cambridge is responsible for the establishment and maintenance of the Police Department and the Po: lice Department’s policies, procedures and practices. Plaintiff brings a four count Complaint. The first two counts allege constitutional violations of equal protection and due process as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff brings both of these counts, I and II, under 42 U.S.C. § 1983 and § 1985. In addition to the two civil rights counts, Plaintiff brings two state law claims seeking damages pursuant to Maryland law for wrongful death and a survival action for the conscious pain and suffering of the Plaintiffs children. The underlying facts in this ease are tragic. On March 10, 1989, Plaintiff left work and went home in response to a telephone call informing her that Don Pittman (“Pittman”), a former boyfriend, had broken into Plaintiffs house and was threatening violence. See Complaint, ¶¶ 7 and 9. When Carol Pinder arrived at home, Pittman physically attacked her and threatened to kill both her and her children. The Cambridge Police Department had already been summoned. Officer Johnson, employed by the Cambridge Police Department responded to the call, and arrived at Plaintiffs’ home shortly after the Plaintiff. By the time Johnson arrived, Pittman was already restrained by a neighbor, Darnell Taylor. Carol Pinder told Johnson what happened, including how Pittman had broken into her home and that he threatened, attacked, and assaulted Plaintiff. In addition, Pittman had destroyed certain property, in particular, a microwave oven. Pittman had apparently thrown the microwave at the Plaintiff. Officer Johnson saw the broken window panes in the back door which Pittman had broken in order to gain access to Pinder’s home. Johnson arrested and handcuffed Pittman. While Pittman was being arrested, he continued to make threats of violence against Plaintiff. Carol Pinder expressed to Officer Johnson her fear and concern for the safety of her children. She reminded Officer Johnson that Pittman was on probation for a previous arson conviction, in which he had broken into Plaintiffs home and attempted to burn it down. Pittman had been convicted of arson for this prior incident and was sentenced to eighteen months in prison, with twelve months’ suspended sentence, followed by three years of supervision. Carol Pinder alleges that she specifically asked Johnson whether she should return to work. In response, Plaintiff alleges that Johnson assured her that it was safe for her to return to work because Pittman would be kept in custody. Ms. Pinder returned to work after Johnson left with the perpetrator, Pittman. Johnson brought Pittman before Commissioner George Ames, Jr. (“Ames”) and charged him with trespassing and destruction of property having a value of less than three hundred dollars. See Complaint ¶¶ 17 and 19. In his incident report, Johnson noted that he responded to a “domestic.” See Complaint ¶ 9. After spending little more than one hour in custody, Pittman was released on his own recognizance. Carol Pinder was at work when Pittman was released. Plaintiff contends that no attempt was made to warn Carol Pinder, nor did Defendants attempt to monitor Pittman after his release in spite of their knowledge of the danger the Pinders faced from Pittman’s threats. Upon his release, Pittman took the ten minute walk from the police station to the Pinder home, broke in and set fire to the house. When firemen were able to enter the house, they found the three children in the upstairs rear recreation room. Efforts to resuscitate the children proved futile. All three children died of smoke inhalation from the fire. Pittman was arrested later that night, charged with arson and murder, and held without bond. Subsequently, Pittman pled guilty to three counts of first degree murder and was sentenced to life in prison without parole. II. Legal Analysis A. Standard for Motion to Dismiss The purpose of a motion to dismiss is to test the formal sufficiency of the statement of a claim for relief. See Fed.R.Civ.P. 12(b)(6). It is not a procedure for resolving a contest about the facts or merits of the case. The Court must consider as true all of the properly pleaded allegations contained in the complaint. Augenstein v. McCormick & Co., 581 F.Supp. 452, 456 (D.Md.1984); see also Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). A 12(b)(6) motion should be read in conjunction with the rules governing claims for relief. Fed.R.Civ.P. 8(a)(2). The test most often applied to determine the sufficiency of a complaint is set out by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In appraising the sufficiency of the Complaint, we follow, of course, the accepted rule that a Complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.; see also, Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324 (4th Cir.1989); Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191, 199 (4th Cir.1963). Complaints should not be dismissed merely because Plaintiffs allegations do not support a legal theory on which the Plaintiff intends to proceed. A Court has an obligation to examine the Complaint and determine if the allegations provide for relief under any possible theory. See McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980); Bowers v. Hardwick, 478 U.S. 186, 201-02, 106 S.Ct. 2841, 2849-50, 92 L.Ed.2d 140 (1986) (Blaekmun dissenting) (citations omitted). B. Count I: Deprivation of Plaintiff’s Right to Equal Protection In Count I, Carol Pinder contends that Defendants violated her right to equal protection under the law. Plaintiff avers that Defendants maintained a custom or policy of “taking domestic violence against women less seriously than other assault cases and treating male offenders in incidents of domestic violence more leniently than offenders in other assault cases ...” Complaint at ¶ 29. Plaintiff contends that this policy or custom “effectively constitutes a gender based administrative classification used to implement the law in a discriminatory fashion.” Id. Plaintiff also appears to allege another equal protection argument in Count I. She maintains that Defendants violated her family’s rights to equal protection by selectively denying protective services to Carol Pinder and her children. Complaint at ¶30. Defendants contend that Plaintiff fails to state a claim upon which relief may be granted because she fails to allege that Defendants’ conduct was intentional. Moreover, Defendants aver that Plaintiff fails to allege sufficient specific facts to support her claim that Cambridge had a policy or custom of providing less protection to female victims of domestic violence than to victims of other violent crimes. Defendants maintain that instead, Plaintiffs contentions constitute no more than bald conclusory allegations. It is axiomatic that in any § 1983 action, a court’s initial inquiry must focus on (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution. Temkin v. Frederick County Com’rs, 945 F.2d 716, 719 (4th Cir.1991) cert. denied, - U.S. -, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981)). Defendants do not contest the existence of first element, that they acted under color of state law. Similarly, Defendants do not contest the presence of the second element of the § 1983 analysis to the extent that Plaintiff identifies á violation of a constitutional right. They do not challenge Plaintiffs claim that a custom or policy of affording less protection to women who are victims of domestic violence as opposed to victims of other violent crimes is policy subject to the restrictions of the equal protection clause. Instead, Defendants’ quarrel with Plaintiffs complaint is that she has not alleged intent, nor has she provided facts to support an inference of a policy of discrimination based on gender. The equal protection clause of the Fourteenth Amendment guarantees that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. 14. The focus of an equal protection inquiry begins with an examination of the legislative or administrative classification that treats similarly situated groups differently. The “courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose.” McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964). In this case, Plaintiff contends that Defendants’ failure to treat female victims of domestic crime the same as victims of other crimes is a gender classification. Classifications made on the basis of gender are not valid under the equal protection clause unless they are substantially related to an important governmental objective. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), reh’g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977). Because they contend that Plaintiff fails to sufficiently allege facts to support a gender classification, Defendants do not attempt to articulate how such a gender classification, if it exists, is substantially related to an important governmental objective. Indeed, it is doubtful that such a justification for providing less protection to female victims of domestic violence than to victims of other violent crimes could be made. See Thurman v. City of Torrington, 595 F.Supp. 1521, 1527-29 (D.Ct.1984) (gender based discriminatory treatment of victims of domestic violence are premised upon “archaic and overbroad” notions, citing Craig, 429 U.S. at 198-99, 97 S.Ct. at 457-58); see also Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (differential treatment of domestic violence in order to promote domestic harmony “may not lawfully be mandated solely on the basis of sex.”). It is well recognized that discrimination against women victims of domestic violence as opposed to other crimes of gender is a valid cause of action under the equal protection clause. Brown v. Grabowski, 922 F.2d 1097, 1117 (3d Cir.1990) cert. denied, — U.S. -, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991); Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1031 (3d Cir.1988); Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir.1988); Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9th Cir.1988); rev’d in part on other grounds, Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.1990); Thurman, 595 F.Supp. at 1521. Moreover, Defendants do not question that, in the abstract, it is a constitutional violation to allocate police protection based upon the gender of the domestic violence victim, Defendants, however, assert that Plaintiff in this ease has failed to adequately allege such a violation both in terms of essential elements and supporting' factual allegations. The Court first considers Defendants’ claim that Plaintiff has failed to allege that Defendants intentionally or purposefully discriminated against women. A plaintiff in an equal protection action has the burden of demonstrating that defendants acted with discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d.450 (1977). It is not necessary to demonstrate that the action challenged was taken solely for discriminatory purposes; it is necessary only to demonstrate that a discriminatory purpose was a motivating factor. Id. at 265, 97 S.Ct. at 563. In the instant case, Carol Pinder alleges intentional discrimination against women by maintaining that Defendants’ policy provides less protection to female victims of domestic violence than victims of other violent crimes. See Complaint ¶¶ at 21, 23, and 29. Plaintiff alleges that Johnson acted intentionally when he chose to charge Pittman with minor offenses and did not make any attempt to warn Carol Pinder of Pittman’s release. Complaint at ¶ 23. Plaintiff also alleges that these acts are part of a custom or policy of the Cambridge Police Department. Complaint at ¶¶ 21 and 29. Taken together, these allegations more than satisfy Plaintiffs burden of alleging intentional discrimination. See Sherrell By and Through Wooden v. City of Longview, 683 F.Supp. 1108, 1116 (E.D.Tex.1987). Defendants’ second ground for dismissal of Count I goes to the sufficiency of what Plaintiff must factually allege in the complaint. They contend that in order to defeat a motion to dismiss, “[p]laintiff must set forth sufficient facts to allow a reasonable jury to infer” that it is the policy or custom of the Cambridge police to discriminate on the basis of gender. Defendants’ Memorandum in Support of Motion to Dismiss at page 6. Defendants rely upon Hynson to support this proposition. 864 F.2d at 1026. The standard of review used in Hynson, however, is not helpful to Defendants’ argument. The Third Circuit’s Hynson standard is for summary judgment, and not as we have here, a motion to dismiss. Id. What a plaintiff must allege in order to prevent dismissal differs from the plaintiffs burden for defeating summary judgment. Compare McLain, 444 U.S. at 246, 100 S.Ct. at 511 (articulating the standard for dismissal motion); with Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (defining the standard for a summary judgment motion). In acting under 42 U.S.C. 8 1983, as generally, a motion to dismiss pursuant to Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts to support her allegations. Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir.1989). In this case, Plaintiff makes a short and plain statement of the facts alleging a violation of constitutional rights by the Defendants, who are state actors. Cf. Fed.R.Civ.P. 8(a)(2); Parratt, 451 U.S. at 535, 101 S.Ct. at 1912-13 (stating requirements for alleging a 8 1983 violation). These facts need describe no more than an incident that places Defendants on notice of a claim entitling Ms. Pinder to relief. Id. As such, when reviewing the sufficiency of a complaint under a dismissal motion, the issue is not, as Defendants suggest, an evaluation of the merits. “Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Nevertheless, the factual allegations in the Complaint may be insufficient to support Plaintiffs allegations that Defendants’ conduct discriminates on the basis of gender. As alleged, Plaintiffs factual claims do not demonstrate how Plaintiffs present injuries arose from a policy of gender discrimination. Cf. Revene, 882 F.2d at 875 (legal conclusions without supporting factual allegations insufficient to demonstrate municipal liability for an unconstitutional policy). First, it is not clear whether Plaintiff has sufficiently alleged an unconstitutional policy. Second, even assuming such a policy exists, it is not clear that it results in a gender-based classification. Each of these deficiencies will be addressed seriatim. The Complaint alleges that Johnson characterized Pittman’s actions as being a “domestic” incident in his police report. Complaint at ¶ 19. Second, the Complaint alleges that Johnson’s superiors approved of and did not question his handling of this incident. Complaint at ¶ 20. Finally, the Complaint suggests that Commissioner Ames, had full awareness of Pittman’s past record of violence and the current threats of violence against Plaintiff and her children, “conspired to be lenient with Pittman.” Complaint at ¶¶ 17-19. Under 8 1983, municipalities may be held liable for a plaintiffs injuries if she can establish that the injuries were the result of an unconstitutional municipal policy or custom. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Revene, 882 F.2d at 874-75; Watson, 857 F.2d at 695. The custom or policy need not be formal or written. Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Often, a plaintiff supports allegations of an unconstitutional municipal custom or policy by pointing to statistical or other related facts outside of the plaintiffs own case. See Thurman, 595 F.Supp. at 1530; see e.g., Watson, 857 F.2d at 695-6 (plaintiff supported equal protection claim against summary judgment motion by presenting statistical evidence that showed the arrest rate was higher in cases of nondomestic than domestic violence and allegations of police training that encouraged using arrest as a last resort in domestic violence situations). In Thurman, for example, the plaintiff was able to allege a municipal custom or policy of discrimination against victims of domestic violence by pointing to repeated incidents of police misconduct within her own case. Thurman, 595 F.Supp. at 1530-31. Carol Pinder, however, does not make factual allegations of repeated or widespread discriminatory acts occurring outside of her own case. Similarly, Plaintiff cites no statistics from which an inference of discriminatory treatment, and when coupled with Plaintiffs other evidence, might be made. Plaintiff does not allege repeated actions of discriminatory conduct within her own case, as in Thurman. At the hearing, her counsel suggested only that Plaintiffs complaint may be amended to allege the Cambridge police department’s failure to charge Pittman with the prior act of arson. Perhaps further discovery may reveal a pattern, but for now Pinder’s equal protection claim must rest upon other grounds. Those other grounds are found in Plaintiff’s claim that Johnson’s superiors approved his course of conduct. “A single incident may serve as the basis of liability when a particular course of action is made by a municipality’s authorized decision makers.” Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). This allegation coupled with Johnson’s listing of the incident as a domestic is enough at this juncture to allege a policy or custom. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.) cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979) (single brutal incident may be sufficient to suggest a link between a violation of constitutional rights and a pattern of police misconduct); Thurman, 595 F.Supp. at 1530. The Court now considers whether Plaintiff can support a claim of gender based discrimination. In examining Plaintiffs allegations in their most favorable light, they appear to support only the inference that there was a Cambridge policy or custom of providing victims of domestic violence with less police protection than victims of other violent crimes. This allegation may not be sufficient enough to support a claim that the policy intentionally discriminate also on the basis of gender. But see Thurman, 595 F.Supp. at 1528 n. 1 (noting one study of interspousal abuse where 29 out of every 30 cases the abused victim is female). A policy that discriminates against victims of domestic violence is gender-neutral on its face. Policies that are facially neutral may trigger intermediate scrutiny when the policy has a disproportionate impact on women that results from purposeful or intentional discrimination. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Watson, 857 F.2d at 696-97. Here, Plaintiff has failed to present any allegations, beyond mere legal conclusions, that the Defendants’ policy has any adverse impact on women at all, much less whether this impact results from discriminatory intent. Cf. Watson, 857 F.2d at 696. Plaintiffs allegations of gender based discrimination are, therefore, probably not sufficient to withstand a motion to dismiss. Revene, 882 F.2d at 874-75. These deficiencies in Plaintiffs factual allegations are not fatal to Carol Pinder’s Count I claim under the equal protection clause. Plaintiffs factual allegations are sufficient to make out a claim that Defendants maintain a policy that discriminated against victims of domestic violence. Complaint at ¶ 30. Although domestic violence victims are not a suspect class requiring a strict or intermediate scrutiny, Defendants must still articulate a rational reason related to a legitimate government purpose to justify this policy. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 3257-58, 87 L.Ed.2d 313 (1985) (invalidating zoning ordinance that required special use permit for a group home for mentally challenged because the ordinance was not rationally related to a legitimate governmental purpose); Plyler v. Doe, 457 U.S. 202, 220, 102 S.Ct. 2382, 2396, 72 L.Ed.2d 786 (1982) (invalidating state law that denied free public education to children of undocumented aliens, even though the Court acknowledged that these children were not a suspect class). The failure to provide police protection is, within the confines of § 1983, subject to rational scrutiny under the equal protection clause. Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir.1983); Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir.1973) (law enforcement officer can be liable under § 1983 when he fails to perform a statutorily imposed duty to enforce the laws equally and fairly, and thereby denies equal protection); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); Fisher v. City of Cincinnati, 753 F.Supp. 681, 687 (S.D.Ohio 1990); Sherrell By and Through Wooden v. City of Longview, 683 F.Supp. 1108, 1114-15 (E.D.Tex. 1987); Bartalone v. County of Berrien, 643 F.Supp. 574, 576-77 (W.D.Mich.1986); Thurman, 595 F.Supp. at 1527-30. These decisions recognize that even under the more lenient examination of rational review, police protection cannot be governed by a policy or custom that arbitrarily discriminates against a particular’ classification of citizens: . The Constitution, because it is “a charter of negative liberties,” ... does not generally mandate that police protect a citizen from attack by a private individual.... Once a government has undertaken to provide the public with protection and law enforcement, however, it cannot do so in a manner which violates the Constitution, such as by discriminating against certain persons on an irrational basis. Shemll By and Through Wooden, 683 F.Supp. at 1112 (citations omitted). In the instant case, Defendants provide no rational reason for the alleged discrimination against victims of domestic violence. Nor do Defendants offer any legitimate governmental purpose that might be served by such a policy. The Court notes in passing that other courts have held that a police policy that discriminates against victims of domestic violence is actionable under the equal protection clause. See Watson, 857 F.2d at 694-97; Thurman, 595 F.Supp. at 1527-30. Therefore, this Court denies Defendants’ motion to dismiss Count I. Plaintiff has sufficiently alleged facts that support a cause of action under the equal protection clause at this juncture. C. Count II: Deprivation of Plaintiffs’ Right to Due Process Count II alleges that Defendants deprived Plaintiff of her substantive due process rights. Plaintiff contends that Johnson’s statements and actions placed Pinder and her children in a position of peril, in violation of Defendants’ duty not to render them more vulnerable to danger. Moreover, Plaintiff claims that her right to due process was transgressed by Defendants “conspiring and failing to charge Pittman with appropriate serious offenses and, thereby, assuring his release from custody ...” As noted earlier, the initial inquiry in a § 1983 action focuses upon two issues: (1) whether the conduct complained of was committed by a person acting under the color of state law; and (2) whether this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution. Temkin v. Frederick County Com’rs, 945 F.2d at 719. Moreover, this Court is cognizant that the substantive component of the due process clause “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.” Weller v. Dept. of Soc. Serv. of Baltimore, 901 F.2d. 387, 391 (4th Cir.1990) (citations omitted). Defendants again do not contest that they were acting under the color of state law. They assert, however, that they did not violate Plaintiffs substantive due process rights because they had no duty to protect Pinder and her children from their attacker, Pittman. Put more generally, Defendants contend that neither Johnson’s action or statements, nor the actions or statements of any other Defendant, transgressed Plaintiffs constitutional rights. Defendants’ argument hinges upon their reading of DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In De-Shaney, Joshua DeShaney, a four year old boy, was severely beaten and permanently brain damaged by his father, with whom he lived. A county agency had been aware that Joshua was being physically abused by his father for over two years and had briefly taken Joshua into its protective custody. Despite being aware that Joshua had been abused by his father on a consistent basis, the State nonetheless failed to remove Joshua from his father’s custody. In considering the duty of the state, the DeShaney Court stated: While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that which he would have been had it not acted at all; Id. at 201, 109 S.Ct. at 1006. According to Defendants, DeShaney imposes an affirmative duty to act, or to protect, in only very limited circumstances. Defendants maintain that outside of a custodial context, such as for prisoners, the state has no obligation to protect an individual from acts of private violence. Id. at 198-200, 109 S.Ct. at 1005-06. Defendants focus on certain limited factual similarities between DeShaney and the instant case to support their argument that the DeShaney legal analysis is controlling herein. Because neither Carol Pinder, nor her children, were in custody, Defendants assert that they did not have any duty to protect Plaintiffs from their attacker. According to Defendants, the arson committed by Pittman, and the resulting murder of the three Pinder children was a private act of violence for which the state is not constitutionally culpable. In addition, Defendants assert that neither their awareness of the dangers that Pinder and her children faced, nor the act of taking Pittman into custody, played any part in creating the dangers confronted by or the violence inflicted upon Plaintiffs. Defendants also deny that Officer Johnson’s assurances of Pittman’s continued custody do not trigger a heighten duty from the state to act notwithstanding the obvious reliance by Plaintiff upon these assurances. DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004. Instead, Defendants maintain that “the affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” Id. at 200, 109 S.Ct. at 1006. Defendants contend that the purpose of the due process clause, that DeShaney articulates, supports confining the state’s duty to act only in situations within the custodial context. According to the DeShaney Court, the due process clause protects people from the state, but does not ensure that the state protect its citizens from each other. Id. at 195-96, 109 S.Ct. at 1003-04. As such, the due process clause does not require the state to provide its citizens with protective services to secure'their right to life, liberty or property: The clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty, or property, without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the state to insure that those interests do not come to harm through other means. Id. at 195, 109 S.Ct. at 1003. The Court notes that it is true that under DeShaney, “[t]he Constitution is a charter of negative liberties drafted, primarily, to tell the State to leave people alone.” Swader v. Com. of Va., 743 F.Supp. 434, 436-37 (E.D.Va.1990) (citing DeShaney for this proposition). The DeShaney Court, however, left two issues unresolved. First, whether, after DeShaney, there are any noncustodial circumstances in which the state’s enhancement of the risk of injury to a plaintiff violates the due process clause. Second, assuming that such circumstances exist, how large a role the state must play in the creation or enhancement of the danger before it assumes a corresponding constitutional duty to protect. See Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir.1990). These questions must be answered, or at least considered answered, in the case sub judice. In doing so, the Court starts with DeShaney and then moves to a review of pertinent case law in this area. The DeShaney analysis itself provides some support for the proposition that those operating under color of state law may, at times, retain an affirmative duty to protect individuals from private acts of violence in a noncustodial context. See DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. The Court’s conclusion that Joshua’s rights had not been violated rested on its determination that the County played no part in creating the dangers or increasing the boy’s vulnerability to those dangers. Id. The County’s limited intervention had not rendei'ed the boy, in the Court’s eyes, “more vulnerable” to the beatings of his father. Id. This analysis establishes the possibility that a constitutional duty to protect an individual against private violence may exist in a noncustodial setting. Id.; see Freeman, 911 F.2d at 55. Similarly, post-DeShaney courts in confronting substantive due process claims, have not confined this light to a purely custodial context. See, e.g., K.H. Through Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir.1990) (in placing a plaintiff not in custody in a position of danger, “the state would be a doer of harm rather than merely an inept rescuer, just as the Roman state was a doer of harm when it threw Christians to lions”); Freeman, 911 F.2d at 52 (police chief may be liable for damages inflicted by a third party where the refusal to enforce a restraining order against the attacker was due to the police chiefs personal friendship with the attacker); Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir.1990) (duty to protect citizen from former policeman who was permitted to retain his gun despite his being placed on the medical roll as mentally unfit for duty); Ross v. United States, 910 F.2d 1422 (7th Cir.1990) (police officer prevented private rescue of a boy who had fallen into a lake); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989) (duty to protect town clerk from inmates assigned to work outside of prison) cet. denied 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990) (duty to protect a passenger left stranded by police in high crime area); Swader v. Virginia, 743 F.Supp. 434, 440-42 (E.D.Va.1990) (duty to protect plaintiff not in custody from prisoner inmates); G-69 v. Degnan, 745 F.Supp. 254 (D.N.J.1990) (duty to protect undercover informant enrolled in government program). These decisions condition liability upon state actions that in themselves create or increase the underlying risk, not upon a plaintiffs custodial circumstances. Id. Other courts in post-DeShaney decisions have reasoned that a state incurs an affirmative duty to act in a noncustodial setting where state officials created or enhanced the peril that a plaintiff was already facing. See, e.g., Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir.1992) (“[wle are not persuaded, however, that [the state official] increased [the victim’s] vulnerability to danger in the sense envisioned by the Court in DeShaney"); Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1116 (8th Cir.1992) (where a defendant police officer had no duty to act because he did not affirmatively place plaintiffs in a position of danger summary judgment granted) cert. denied, — U.S. -, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993); D.R. By L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1373-76 (3d Cir.1992) (“Plaintiffs’ harm came about solely through the acts of private persons without the level of intermingling of state conduct with private violence that supported liability in Wood, Swader, Cornelius ”); Losinski v. County of Trempealeau, 946 F.2d 544, 550 (7th Cir.1991) (state officials not liable when there was no evidence that the state enhanced or created the risk plaintiff faced); Brown v. Grabowski, 922 F.2d 1097 (3d Cir.1990) (summary judgment on substantive due process claim granted where a plaintiff not in custody supplied no evidence that state actors exacerbated the danger); Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir.1990) (declining to impose liability upon state for deaths to post office employees shot by fellow worker where responding police did not create the dangerous situation nor act to worsen decedents’ plights); Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.1990) (failure of plaintiff to allege a special relationship required the dismissal of the due process claim). Again, in each of these eases, it was the state official’s lack of involvement in plaintiffs peril, and not plaintiffs custodial circumstances, that relieved the state of liability. Id.; cf. Temkin v. Frederick County Commissioners, 945 F.2d 716, 720-23 (4th Cir.1991) (substantive due process rights of a plaintiff may be violated in the noncustodial context of a police vehicle chase where the government official’s act “shocks the conscience” of the court); see also Williamson v. City of Virginia Beach, 786 F.Supp. 1238 (E.D.Va.1992) (“... the DeShaney opinion ... does not foreclose the possibility that an affirmative duty under the Due Process Clause might arise in a situation where the state played a role in creating the danger faced by-a citizen.”). The Court notes that prior to DeShaney, the Fourth Circuit established a conceptual framework for examining whether a state had an affirmative duty under the due process clause to protect an individual from harm in Jensen v. Conrad, 747 F.2d 185, 190-94 (4th Cir.1984) cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985) (Fourth Circuit made explicit that “a right to affirmative protection need not be limited by a determination that there was a ‘custodial relationship’ ”). The Jensen Court identified some of the factors that could give rise to a “special relationship” between a state and a private citizen that triggers the affirmative duty to act. Id. at 194, n. 11. The application of these factors did not depend upon plaintiffs being in custody. Id. For example, the first factor examined whether the victim/plaintiff or the perpetrator is, or was, recently in custody. The DeShaney decision notwithstanding, the district courts of this circuit have continued to use the Jensen “special relationship” factors for determining whether liability arises under the due process clause for a state’s failure to act. See Williamson, 786 F.Supp. at 1238 (applying the Jensen factors to hold that no special relationship existed between city official defendants and the victim, even though the victim had been in custody before his suicide); Swader, 743 F.Supp. at 434 (applying the Jensen factors to hold state officials liable for their failure to protect a plaintiff who was not in custody, but where the state had created the danger plaintiff faced). None of these courts, in this or other circuits, foist such a broad reading of DeShaney upon the law as do the Defendants. Likewise, this Court finds that while the custodial circumstances of a plaintiff are important, they are not dispositive. Indeed, the Supreme Court recognizes that in addition to being a charter of negative liberties, “the Due Process Clause, like its forbear in the Magna Carta, was intended to secure the individual from the arbitrary exercise of the powers of government.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (citations omitted). A custodial setting may provide a clearer case for attaching constitutional liability to the inaction of government officials. The arbitrary exercise of governmental power is magnified in the custodial setting. In the custodial context, liberty is restricted, and individuals are unwillingly placed in situations in which they may be unable to respond and the state has assumed increased control and authority over them. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntarily committed mental patients have a Fourteenth Amendment due process right to their “reasonable safety” from themselves and others); Buffington v. Baltimore County, 913 F.2d 113, 119 (4th Cir.1990) cert. denied, — U.S. -, 111 S.Ct. 1106, 113 L.Ed.2d 216 (1991) (county officials could be liable when they knew the individual in their custody was suicidal and in need of emergency intervention, but acted with deliberate indifference in failing to prevent individual’s suicide). While the custodial context magnifies the government’s responsibility to act, as a matter of logic, it does not present an exclusive set of circumstances under which a government may act arbitrarily. Nor, therefore, should the right to due process be arbitrarily limited to protecting only those in custody. The public should have the same right as state prisoners and those in the custody of other public institutions .to be free from the arbitrary exercise of governmental authority: If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as it had thrown him into a snake pit. Jensen v. Conrad, 747 F.2d 185, 192 (4th Cir.1984) quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Arbitrarily confining liability stemming from a government’s inaction in custodial circumstances alone would so restrict the reach of the Fourteenth Amendment as to make it a safe haven for official misconduct. The Constitution is not an absolute shield for the failure to do one’s duty. See Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). Indeed, DeShaney did not foreclose the possibility that an affirmative duty might arise in a situation in which the government created or increased the danger a plaintiff faced. 489 U.S. at 201, 109 S.Ct. at 1006; see Williamson, 786 F.Supp. at 1252. Clearly, a mechanical application of substantive due process to custodial settings only would be easier to apply and would limit state liability. Such an interpretation, however, would carry the irony of requiring courts to arbitrarily limit a right in which its very purpose is to protect citizens from arbitrary state action. This mechanical application of the right would necessarily undermine the ethical legitimacy of court decisions. The mechanical application of this right is not necessary to limit unwarranted liability. Clear and reasonable standards exist that do not sacrifice individual rights, nor depend on arbitrary limitations. First, the recognition of a substantive due process right outside the custodial context need not interfere with the discretionary allocation of public resources. The due process clause imposes no obligation for a government to provide citizens with a particular level of services. See Harris v. McRae, 448 U.S. 297, 317-18, 100 S.Ct. 2671, 2688-89, 65 L.Ed.2d 784 (1980) (no obligation to fund abortions or other medical services). DeShaney also prevents a finding that substantive due process rights have been violated when the withdrawal or reduction of a particular level or type of public protective service leads to injury. Philadelphia Police & Fire Association v. City of Philadelphia, 874 F.2d 156 (3d Cir.1989) (“Just as in De-Shaney, the retraction of state intervention permits the harm, but the harm in each case actively is caused by a source other than the state.”) These decisions restrict liability for situations better addressed through the political process. Second,' applying substantive due process to non-custodial contexts need not leave individual state officials open to unwarranted liability. Clearly, courts should not use the clarity of hindsight to second guess the difficult decisions that state officials confront. As with other § 1983 actions, more than mere negligence of state officials is required to trigger liability. Daniels, 474 U.S. at 328, 106 S.Ct. at 663. Moreover, as with all other § 1983 actions, plaintiff must demonstrate that the government action proximately caused his or her injury. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, reh’g denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980) (no liability where plaintiffs injury was. too remote a consequence of defendants’ action to hold them responsible under § 1983). Without causation, demonstrating how the government’s conduct caused the injury, liability cannot attach. “There is no constitutional right to be protected by the state against being murdered by criminals or madmen.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Third, even if a plaintiff meets the requirements necessary to establish a substantive due process violation, a defendant may still raise a defense of qualified immunity. Unless a plaintiff can demonstrate the violation of a clearly established right, no liability will attach for government inaction. It is with these safeguards in mind that the Court finds that such a substantive due process right exists for a government’s failure to 'act outside of the strictly custodial context. Next, the Court considers whether Plaintiffs allegations of Defendants’ role in increasing the danger to Carol Pinder and her children created a corresponding constitutional duty to provide some protection from Pittman’s violent act. Stated another way, were the actions taken by Defendants sufficient to warrant the protections of the due process clause, because Defendants’ conduct made the Pinders more vulnerable to Pittman’s arson? The DeShaney Court left this issue unresolved. See Freeman, 911 F.2d at 55. The Fourth Circuit has recognized that the state may incur an affirmative duty to act when “custodial or other relationships exist.” Fox v. Curtis, 712 F.2d 84, 88 (4th Cir.1984). As already noted, the Fourth Circuit has held that the government also has a duty to act when a special relationship exists. Jensen, 747 F.2d at 194 n. 11. The Jensen Court identified factors to be included in a special relationship analysis: 1) Whether the victim or perpetrator was in legal custody at the time of the incident, or had been in legal custody prior to the incident.... 2) Whether the, state has expressly stated its desire to provide affirmative protection to a particular class or specific individuals.... 3) Whether the state knew of claimants’ plight. Id. at 194 n. 11. The Jensen Court indicated that the first factor relates to the government’s awareness of whether a plaintiff, as opposed to the general public, faces a special danger. Id.; see also Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 reh’g denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980) (Supreme Court declined to impose liability for a state’s failure to act in part because the government “was not aware that [the decedent], as distinguished from the public at large, faced any danger”). The second and third factors relate to the government’s intent to “single out” a plaintiff for special care. Jensen, 747 F.2d at 194. Plaintiffs circumstances meet the factors identified by Jensen. First, Johnson was summoned to the Pinder home prior to the arson, where he found Pittman being restrained by a neighbor and threatening to do Plaintiff further harm. Johnson arrested Pittman and assured Plaintiff that it was safe for her to return to work. Johnson brought Pittman before Commissioner Ames where Pittman was charged with trespassing and minor destruction of property. Pittman was in physical custody just prior to murdering the three Pinder children by arson. Pittman was then released on his own recognizance, immediately walked the short distance from the police station to Plaintiffs’ home, and turned his previous violent threats into a violent act. Second, Defendants expressed their intentions to provide affirmative protection to Plaintiff. According to Plaintiff, Johnson gave Carol Pinder assurances when Pittman was arrested that Pittman would remain in custody. Third, Defendants were aware of the plight that Plaintiff faced. Plaintiff contends that Commissioner Ames and Officer Johnson were aware of Pittman’s past and his previous attempt to burn Plaintiff’s home down for which Pittman was convicted of arson. According to Plaintiff, Johnson knew Pittman from their high school days together. Indeed, Plaintiffs allege that “Johnson knew Pittman had a dangerous nature and propensity to act aggressively ...” Complaint at paragraph 11. Beyond this general knowledge of Pittman, Carol Pinder reminded Johnson at the time of the arrest of Pittman’s previous acts of violence against the Pinders. Ms. Pinder showed Johnson where Pittman had broken into the Plaintiffs’ home by breaking the back door window panes. Carol Pinder told Johnson of how Pittman had attacked and threatened her before he was restrained by a neighbor. Finally, Johnson saw how Pittman resisted arrest and continued to make threats against the Pinders stating, “that if he was going to jail, it was going to be for murder.” Complaint at ¶ 12. If these allegations are true, Defendants knew that Plaintiff, as opposed to the general public, faced a special danger. Moreover, the facts are sufficient for purposes of Rule 12(b)(6) to find that Plaintiff was singled out for protection by Johnson’s words and actions. Jensen, 747 F.2d at 194 n. 11; Swader, 743 F.Supp. at 440-43; but see Williamson, 786 F.Supp at 1283. Though Jensen provides a good analytic starting point for determining whether a special relationship exists, merely establishing the three factors may not be enough to meet the burden imposed by DeShaney. The Jensen factors only establish the government’s awareness of the victim’s predicament and the expression of its intent to help. 747 F.2d at 194, n. 11. Outside of a custodial setting, neither a police officer’s awareness of a victim’s plight, nor mere expressions of intent to help a victim are enough to trigger an affirmative government duty to act. See DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005-06. “To serve and protect” may be the motto for law enforcement, but it is not the constitutional standard under which police actions are judged. Subsequent to DeShaney, circuit court opinions expanded upon this analysis. See, e.g., Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.1989) (even though state officials know that a person is in imminent danger of harm from a tim'd party, the Fourteenth Amendment imposes no obligation on the state to prevent that harm); Balistrere v. Pacifica Police Department, 901 F.2d 696, 701 (9th Cir.1990) (the due process clause did not impose on the government an affirmative duty to protect even though the government was aware of plaintiffs plight and took some steps to protect plaintiff). DeShaney requires an analysis of whether a state acted to create the duty such that the corresponding failure to act is arbitrary. The analytical focus herein must be upon what the state did to create or enhance the risk plaintiff faced. The Swader court acknowledged this requirement when it held that plaintiffs had adequately alleged the existence of a special relationship giving rise to an affirmative duty. 743 F.Supp. at 435. In Swader, plaintiffs not only sufficiently alleged a special relationship under Jensen, but plaintiffs also sufficiently alleged state involvement in creating and enhancing the risk that the decedent plaintiff faced. Id. at 441-42 (state created dangers plaintiffs faced because it required plaintiffs live on prison property, ingress and egress to the prison was over roads owned and maintained by the state, and the state was supposed to, but did not, provide proper supervision of all inmates). Similarly, in the instant case, the analytical focus must not stop with Jensen, but begin there. Establishing the presence of the Jensen factors creates a nexus between plaintiffs and the government that may cause a failure to act to become an arbitrary exercise of government authority. This can be established only when it is shown that the government has acted to increase or create the danger that a plaintiff faces. An exact test under DeShaney for what level of government involvement triggers this due process right, however, is not available. The Court, however, may by analogy, cast the DeShaney requirements against the backdrop of common law torts. In doing so, the common law distinction between “misfeasance” and “nonfeasance” captures, to some degree, the DeShaney proposition that liability attaches for only injury created by one’s acts. Governmental inaction, or individual nonfeasance, is not actionable when the failure to take steps does not make another worse off. See Prosser and Keeton, Torts at 373 (5th Edition 1984). Neither knowledge of a victim’s predicament nor the ability to rescue the victim from danger creates an affirmative obligation to act under common law. See, e.g., Osterlind v. Hill, 263 Mass. 73 (1928) (no duty of one with a rope and a boat to rescue another who is drowning before one’s eyes); Sidwell v. McVay, 282 P.2d 756 (Okl.1955) (no duty to prevent neighbor’s child from hammering on an explosive charge). In these situations as in DeShaney, the common law recognizes no liability for the nonfeasance. South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). As in DeShaney, the common law does not impose liability even where one has the ability to prevent harm and the knowledge of the victim’s predicament. 489 U.S. at 200, 109 S.Ct. at 1005-06; see also, Jackson v. City of Joliet, 715 F.2d 1200, 1202-03 (7th Cir.1983). While common law tort law recognized no duty to go to the assistance of an individual in peril, there does exist a duty to avoid affirmative acts that cause an individual’s situation to worsen. See e.g., Huey v. Barloga, 277 F.Supp. 864, 872 (N.D.I11.1967); Fagg’s Adm'r v. Louisville & N.R. Co., 23 Ky.L.Rptr 383, 111 Ky. 30, 63 S.W. 580 (1901); Restatement (Second) of Torts § 323 (1965). The voluntary assumption by affirmative conduct to come to the aid of another may create a duty. For example, a duty to act may exist where a victim detrimentally relies upon an individual’s promise to aid. DeLong v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887 (1982); but see, Thome v. Deas, 4 Johns. 84 (N.Y.1809) (no liability for mere gratuitous promise to give aid, even though there is detrimental reliance upon the promised assistance). Here again, the common law duties mirror DeShaney’s focus upon governmental actions that create or enhance the danger a victim faces. 489 U.S. at 201, 109 S.Ct. at 1006. Once performance begins, a duty to act is created when that action increases the danger such that the victim is mislead to believe that the danger is removed, or by depriving a potential victim of help from other sources. See, e.g., United States v. Lawter, 219 F.2d 559 (5th Cir.1955) (liability imposed where rescue effort negligently done); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.App. 1980) (liability where plaintiff relied upon broker’s assurance that sales contract protected against termite damage). While these common law tort principles do not provide direct authority, they do provide an analogy that may be applied to DeShaney to clarify the amount of governmental intervention necessary to create an affirmative duty for governmental action. The distinctions between “misfeasance” and “nonfeasance,” and the liability that may attach, preserves DeShaney’s view of the Constitution as a charter of negative liberties. 489 U.S. at 195, 109 S.Ct. at 1003. Liability is not imposed, under the Constitution, to insure that life, liberty or property is preserved. However, when those interests are jeopardized by actions that increase the danger, or make the victim more vulnerable, an affirmative duty arises. In the instant case, Plaintiff contends the risk they faced from Pittman was increased by Defendants in three ways. First, Plaintiff contends that in spite of Johnson’s knowledge of the seriousness of Pittman’s alleged acts, he was charged with very minor offenses that ensured Pittman’s immediate release. Second, Plaintiff contends that the statements Johnson made assuring Carol Pinder that Pittman would remain in custody increased the danger that Plaintiff faced. Third, Plaintiff implies that Johnson’s prior relationship with Pittman may have interfered with his decision to charge Pittman with only minor offenses. Turning to the first claim, it is unclear that Officer Johnson’s charging Pittman with relatively minor offenses would be sufficient to require an affirmative act from the Defendants to protect the Pinders. As previously discussed, neither knowledge nor Johnson’s ability to charge Pittman with a different crime by themselves are sufficient to trigger the duty to act. See Horton, 889 F.2d at 454; in McKee v. City of Rockwall, Texas, 877 F.2d 409 (5th Cir.1989), the failure to charge Pittman with more serious offenses may make Defendants’ inaction ultimately more arbitrary, but the decisions in McKee and Horton make clear that undercharging does not meet the heavy burden DeShaney imposes. As to Plaintiffs second claim, Carol Pinder alleges she asked Officer Johnson whether it was safe for her to return to work in view of Pittman’s prior violence and his current threats against Plaintiffs. Plaintiff alleges that Johnson told Pinder that she could return to work because Pittman would remain in custody. Using the common law analogy, and looking at these allegations in a light most favorable to Plaintiff, Defendants’ assurances appear to have turned their nonliable nonfeasance into liable misfeasance. Defendants increased the risk to Plaintiff by providing assurances that the danger faced had been removed. Ms. Pinder, in reliance upon Johnson’s assurances, changed her course of conduct and returned to work. As such, the world that Defendants released Pittman into after his physical custody was materially changed. Ms. Pinder had returned to work. The neighbor who had restrained Pinder’s attacker was gone and the Pinder children were helplessly stranded at home vulnerable to Pittman’s final act. Defendants’ liability is sufficiently alleged when one considers other court decisions in which a substantive due process violation was premised upon the government’s failure to act. First, this case meets the Swader standard. As already noted, Swader applied the factors identified by the Jensen Court, and then the Court also examined how the state’s conduct created or increased the danger plaintiff faced. See Swader, 743 F.Supp. at 439-43. This Court has already determined that the Pinders’ factual circumstances are comparable to the Jensen special relationship factors. In addition to meeting the Jensen factors, the Court finds that Defendants here, also increased the risk that Plaintiff confronted; their conduct made the Pinders more vulnerable to Pittman’s violence. See Swader, 743 F.Supp. at 442. For purposes of the instant motion, and as in Swader this Court need not hold that Defendants did not as a matter of law, owe any affirmative duty to Plaintiffs. Id. at 444. Plaintiffs allegations establishing both Jensen factors and the government’s enhancement of risk to plaintiffs make out a possible claim that a special relationship existed that may require an affirmative duty. Id. Second, Plaintiffs claims establish a necessary level of government involvement to sufficiently allege a substantive due process violation as measured, by the decisions in other circuits. As in the instant case, these courts focus upon actions taken by government entities that increased or made the plaintiffs more vulnerable to danger. In each of these cases, the government’s duty to take action to prevent the harm arose because plaintiffs situation was worsened by a prior government act. The Ninth Circuit in Wood held that due process claims could be alleged when a police officer increased a plaintiffs risk of harm by knowingly leaving a female passenger stranded in a high crime area, after arresting the driver and impounding the vehicle. Wood, 879 F.2d at 583. The stranded plaintiff later accepted a ride from an unknown man who raped her. The Ninth Circuit’s analysis was done within the context of ruling upon the defendant’s alleged qualified immunity. The Wood Court held that a reasonable police officer would have understood that his conduct violated the plaintiffs due process right to be free from unjustified intrusion into her personal security. Id. at 596. The Eleventh Circuit, in Cornelius, reversed summary judgment for defendant officials whose conduct in bringing dangerous prisoners to town under the auspices of a community work program affirmatively created danger that resulted in injury to a plaintiff from the prisoners. Cornelius, 880 F.2d at 348. Plaintiff, a city hall employee who worked arou