The opinion of the court was delivered by: TROUTMAN
In this civil rights action, we are concerned with the incidents and circumstances surrounding the death of Russell Ammlung on January 24, 1970. The facts, as alleged in the complaint filed by Dorothy Ammlung as administratrix of her son's estate, are as follows: On the night of January 23, 1970, the decedent, [Rusty], age eighteen, attended a dance in the gymnasium of St. James High School in Chester, Pennsylvania. After removing his coat, Rusty was also required to remove his shoes in order to preserve the gymnasium floor. While he was attending the dance, Rusty became ill and attempted to retrieve his coat from the cloakroom. As he was proceeding down the hall, Rusty was observed by a chaperone who summoned defendant Platt, a Chester police officer on extra duty. Platt confronted Rusty, sitting on the stairs, and asked him where his shoes were. Because of his illness, Rusty was unable to respond to the officer's question. Thereupon, Officer Platt arrested Rusty without a warrant and charged with with "underage drinking", allegedly on the basis that he had the odor of liquor on his breath.
Defendants Friel and Brown, who were also Chester police officers, responded to Platt's call and took Rusty into custody. At this time, Rusty was removed from the school without his coat or shoes, placed in a police car while in an "uncomprehending state" and driven to the city jail.
Upon his arrival at the Chester jail, Rusty was placed on the floor of a cell in an "uncomprehending, totally helpless position". The officers did not advise Rusty of his rights nor did they call his parents or seek medical assistance for him. At this point, defendants Dixon and Sergeant Morgan turned Rusty over on his side, thus becoming aware of his condition. Later in the night, Dixon, Morgan, and Magistrate Lawrence, also a defendant, poured some water over Rusty in an attempt to prepare him for arraignment. At this point, Captain Welc is alleged to have become aware of Rusty's condition.
At approximately 10 A.M. the following morning, a rattle was heard in the boy's throat, and the rescue squad was summoned to transport him to Chester Crozier Medical Center, where he was pronounced dead on arrival. An autopsy revealed that there was no alcohol in his blood and that the cause of death was due to the aspiration of his own vomit.
As a result of her son's death, plaintiff filed two suits in the Court of Common Pleas of Delaware County. The first suit was filed against the City of Chester, Magistrate Lawrence, Captain Welc, Sergeant Morgan, Roy Dixon, and Officers Platt, Friel and Brown. On August 16, 1971, the Court sustained defendants' preliminary objections on state immunity grounds, but granted plaintiff leave to file an amended complaint. On August 28, 1972, the state court sustained defendants' preliminary objections to the amended complaint and from this decision, plaintiff has appealed. At this time, her appeal is still pending before the Superior Court of Pennsylvania, a motion to quash the appeal being denied on December 6, 1972. The second state action was filed against the Mayor of Chester and the Chief of Police. On August 16, 1971, the Court again sustained defendants' preliminary objections on state immunity grounds, but granted plaintiff leave to file an amended complaint. On February 3, 1972, the Court issued an order entering judgment in favor of defendants because of plaintiff's failure to file an amended complaint. No appeal from the dismissal was taken. In both prior state court suits, defendants' liability was based on state law, and, as far as can be discerned, no civil rights claim was made.
On May 2, 1972, plaintiff filed a civil rights action in this Court, brought under 42 U.S.C. §§ 1983, 1985 and 1988, seeking damages and injunctive relief. As defendants, plaintiff named the following individuals: Officers Platt, Friel and Brown, Captain Welc, Sergeant Morgan, Magistrate Lawrence, Roy Dixon, Chief of Police Bail, and Mayor Nacrelli. Construing her complaint broadly, plaintiff alleges that the following acts committed by the various defendants amounted to deprivations of Rusty's civil rights:
1. Illegal arrest [Officer Platt]
2. False imprisonment [Officers Platt, Friel and Brown, Captain Welc, Sergeant Morgan, Magistrate Lawrence and Roy Dixon]
3. Illegal search and seizure [Officers Platt, Friel and Brown]
4. Assault and battery [Officers Friel and Brown; also by Sergeant Morgan, Magistrate Lawrence and Roy Dixon]
5. Criminal negligence [by defendants Platt, Friel, Brown, Morgan, Welc, and Dixon in failing to provide adequate medical care]
6. Cruel and unusual punishment
7. Due process violations, i.e., failure to advise decedent of his constitutional rights.
In addition, plaintiff reasserts her wrongful death and survival actions as pendent claims.
Presently before the Court is defendants' motion to dismiss the complaint for failure to state a cause of action. For the purpose of a motion to dismiss, the material allegations of the complaint are taken as admitted. See e.g. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175, 86 S. Ct. 347, 15 L. Ed. 2d 247, 147 U.S.P.Q. (BNA) 404 (1965). In addition, the complaint is to be liberally construed in favor of the plaintiff. See F.R.Civ.P. 8(f); Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The complaint should not be dismissed unless it appears that plaintiff could prove "no set of facts in support of his claim which would entitle him to relief". Conley v. Gibson, supra, at 45-46, 78 S. Ct. at 102. See also Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969). Thus, although plaintiff's complaint has been drafted by her attorney, the standard is substantially similar to that set forth for pro se litigants in civil rights cases. Compare Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1973). In support of their motion, defendants raise the following defenses: immunity from the civil rights acts, the statute of limitations and res judicata.
Initially, plaintiff alleges in her complaint that this action is brought under 42 U.S.C. § 1988.
Thus, to the extent plaintiff relies on Section 1988 as creating a cause of action, we must analyze the significance of this provision. Section 1988 provides in essence that in a civil rights action, the governing law is to be the law of the United States. Where there are no applicable federal laws, the common law and laws of the state shall govern, as long as they are not inconsistent with the Constitution and laws of the United States. Thus, Section 1988 authorizes, in civil rights cases, resort to remedies and procedures of the ...