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REIFF v. CITY OF PHILADELPHIA

June 25, 1979

Donna Lynn REIFF, a minor, by her parents and natural guardians, Donald A. Reiff and Dovie K. Reiff, in their own right,
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: BRODERICK

MEMORANDUM AND ORDER

This an action brought on behalf of a minor plaintiff against the City of Philadelphia seeking damages for an alleged violation of plaintiff's constitutional rights. Plaintiff claims that the City violated her Fourteenth Amendment rights by failing to provide her with adequate police protection. *fn1" She also alleges a pendent state law tort claim against the City. She asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343(3).

 The defendant, City of Philadelphia, has moved for summary judgment pursuant to Fed.R.Civ.P. 56. The City bases its motion solely on the pleadings. Neither party has filed an affidavit, and apparently no depositions have been taken. The Answers to Interrogatories filed with the Court contain only the names of potential witnesses. Therefore, the Court, in accordance with the established practice, has considered the City's motion for summary judgment as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). In re Penn Central Securities Litigation, 347 F. Supp. 1327 (E.D.Pa.1972), Modified on other grounds, 357 F. Supp. 869 (E.D.Pa.1973), Aff'd 494 F.2d 528 (3d Cir. 1974); 6 J. Moore, Federal Practice P 56.02(3) at 2045 (2d ed. 1971) (hereinafter cited as Moore).

 The test on a Rule 12(b)(6) motion to dismiss is whether the complaint states a cause of action upon which relief can be granted. A complaint should not be dismissed unless it appears to a certainty that the plaintiff is entitled to no relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); 2A Moore P 12.08 at 2271-74.

 The Court dismissed plaintiff's original complaint filed in this action. In the original complaint, plaintiff alleged that she had a remedy under 42 U.S.C. § 1983 and that the Court had jurisdiction under 28 U.S.C. § 1343(3). At that time, a municipality was not deemed to be a "person" within the meaning of § 1983 under Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). The complaint was dismissed on that ground and on the further ground that plaintiff had failed to plead with sufficient particularity a factual basis for the alleged constitutional violation as required by Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). Leave to amend the complaint was granted for the purpose of curing the deficient allegations. Reiff v. Commonwealth of Pennsylvania, 397 F. Supp. 345 (E.D.Pa.1975).

 Since our earlier decision, the Supreme Court has ruled that a City is a "person" within the meaning of § 1983 and can be sued under that section when the unconstitutional action alleged implements or executes a City policy or custom. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611. This action is therefore being considered as one brought under § 1983, particularly since the complaint alleges that the City pursued a policy of providing inadequate police protection by refusing to respond to calls based upon mere suspicion of a crime and failing to provide adequate protection in a high crime area. The question presented, therefore, is whether the plaintiff has stated a claim upon which relief can be granted by alleging that the City's policy of failing to provide adequate police protection deprived the plaintiff of a constitutional right.

 The amended complaint alleges that on February 5, 1973, the minor plaintiff, while a business visitor in a shop known as Peasant Garb, 223 South 17th Street, Philadelphia, Pennsylvania, was shot and wounded by one Kenneth Taylor, a/k/a Kenneth Davis, who, in the company of and in conspiracy with one Angela Frierson and one William Jones, was then robbing individuals in the shop at gunpoint. As a result of a gunshot wound inflicted by Taylor, the minor plaintiff is paralyzed from the chest down and is permanently confined to a wheelchair. Plaintiff alleges that the City is liable in damages to her on the basis of her allegation that the City failed to provide adequate police protection. She bases her claim of inadequate police protection on the allegation that the Police Department has a policy of not responding to calls for assistance unless and until a crime has actually been committed and on the alleged failure to provide adequate police protection in a high crime area.

 Construing the amended complaint in the light most favorable to the plaintiff, it basically alleges that the police protection afforded her was inadequate. This Court has been unable to find any precedent supporting plaintiff's contention that inadequate police protection is a violation of any constitutional right. In her memorandum of law in opposition to the defendant's motion, plaintiff contends that police protection is an essential governmental service and that failure to provide such essential governmental service is a constitutional violation. This contention must be rejected.

 The Supreme Court of the United States has repeatedly pointed out that one must look to the Constitution itself in order to determine whether it explicitly or implicitly creates a constitutional right. In Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972), in rejecting the plaintiffs' contention that a state law governing landlord-tenant relationships violated the due process clause of the Fourteenth Amendment, the Court said:

 
We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide a remedy for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality . . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial functions.

 Id. at 74, 92 S. Ct. at 874.

 In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), though the Court acknowledged that education is perhaps the most important function of government, the Court rejected the plaintiffs' argument that they had a constitutional right to education by saying:

 
(T)he importance of a service (to be provided) by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. ( Id. at 30-31, 93 S. Ct. at 1295). . . . Thus, the key to determining whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, ...

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