1978, the plaintiff summoned the police to his home because his wife was unable to awake their fifteen-year old son, the decedent, who was unconscious. Officers DiJoseph and Ridge arrived at the house and shouted at the decedent for nearly ten minutes until they were able to arouse him. The decedent told the officers and the plaintiff that if they awoke him again he would kill himself. The officers conducted a search of the decedent's bedroom and confiscated certain material, including marijuana and other drugs.
The officers proceeded to handcuff the decedent and told the plaintiff that they were taking the decedent to the Township police station. They also informed the plaintiff that he and his wife could follow in their own vehicle and reassured them that they had ways of preventing suicide attempts and reviving the decedent if he did attempt suicide. The police took the decedent to the police station and locked him in a cell which had an inner door of steel bars and an outer door made of wood that had no window. The wooden door had to be opened for anyone to observe the decedent. The plaintiff alleged that Corporal Dean was responsible for the cell detention area.
The plaintiff and his wife traveled to the police station in their car. Upon their arrival at the station, they talked with Detective Panechello, who was with the juvenile squad of the police force, and asked Detective Panechello if they could see the decedent. Detective Panechello refused the request. The decedent's brother arrived at the police station approximately twenty to thirty minutes later and also talked with Detective Panechello about seeing the decedent. The decedent's brother also inquired as to the reason for not taking the decedent to the hospital which was located directly across the street. Detective Panechello responded that they were going to let the decedent "sleep it off that night" at the police station, and allow him to go home with his parents the next morning.
After several requests were made by the decedent's brother to allow him to visit the decedent, Detective Panechello took him to the cell which housed the decedent. Upon opening the wooden door, which had been completely closed and locked, they discovered the decedent hanging from a rope made of sheets on the bed in the cell. The decedent was unconscious and not breathing. Attempts were made to revive the decedent by various methods, including the use of a resuscitator sold by Ohio Medical Products. These attempts, however, were unsuccessful, and the decedent was taken to the hospital across the street, where he remained in a comatose state until he died on April 23, 1978.
The plaintiff has asserted four "causes of action" against the defendants who filed the motion to dismiss. The first cause of action alleges that the moving defendants were negligent in that they placed the decedent in an unattended cell from which they could not observe him without opening the outer door, left sheets on the bed in the cell with which he could hang himself, refused the requests of the decedent's parents and brother to have him taken to a hospital, refused to attempt to calm down the decedent, did not monitor the decedent, equipped the police station with defective resuscitation equipment, and were inadequately trained to revive the plaintiff. The plaintiff further alleges that the Township and Chief Mooney failed to properly and adequately train and supervise the other defendants in the performance of their police duties and did not have regulations and training programs for dealing with juveniles suffering from overdoses of drugs.
The second cause of action asserted by the plaintiff alleges that the moving defendants violated the Pennsylvania Juvenile Court Act of 1972 in that the decedent was not taken to the hospital for medical attention at the time of his arrest. The part of the Act upon which the plaintiff relies is codified at 42 Pa.Cons.Stat.Ann. § 6326(a)(3). The third and fourth causes of action alleged by the plaintiff are state law wrongful death and survival actions, over which the plaintiff requests the Court to assert pendent jurisdiction.
It is clear that the plaintiff's claim under section 1985(3) must be dismissed. The Supreme Court has stated that there can be no recovery under this section unless there is "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) (footnote omitted). The plaintiff's complaint does not allege that there was a conspiracy among the moving defendants to act in the manner they did, or that there was any racial or class-based invidiously discriminatory animus behind their actions. The plaintiff has thus failed to allege a claim upon which relief can be granted under section 1985(3).
The plaintiff's failure to state a claim for relief under section 1985(3) mandates that we dismiss his claims under section 1986 because a section 1986 violation can be predicated only upon a violation of some part of section 1985. 42 U.S.C.A. § 1986; Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980). Furthermore, the plaintiff's claims under section 1988 will be dismissed because that section "is procedural and alone does not give rise to a cause of action." Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973).
In connection with the claims of the plaintiff under the Fourth, Fifth, Eighth, and Fourteenth Amendments, an examination of the complaint discloses that he has not alleged any violation by the moving defendants of the rights secured to him by the Fourth and Fifth Amendments. The plaintiff has not alleged that the search of the decedent's room or the decedent's arrest violated the Fourth Amendment, and he has not alleged that the decedent incriminated himself in violation of the Fifth Amendment. Furthermore, the plaintiff cannot assert a violation of his Eighth Amendment rights against cruel and unusual punishment because such rights do not accrue until there is an adjudication of guilt in a criminal prosecution. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Romeo v. Youngberg, 644 F.2d 147, 156 n. 8 (3d Cir. 1980) (en banc).
The plaintiff also claims that the complaint alleges violations of the due process and equal protection clauses of the Fourteenth Amendment. With respect to the equal protection claim, there is no allegation that the decedent or any class of people to which the decedent belonged was being treated in a discriminatory manner by the moving defendants. Although the decedent, as an arrestee, had no rights under the cruel and unusual punishment clause of the Eighth Amendment, the due process clause of the Fourteenth Amendment protects him from "abusive treatment." Patzig v. O'Neil, 577 F.2d 841, 847 (3d Cir. 1978); Bell, supra; see Romeo, supra. In determining whether the plaintiff's due process rights were violated by the defendants' alleged neglect of the decedent while he was in their custody, decisions "applying the cruel and unusual punishment clause serve as "useful analogies.' " Patzig, supra, at 847.
As previously stated, the first cause of action in the complaint alleges that the defendants were negligent, inter alia, in not monitoring the decedent while he was in their custody and in not being able to revive him after they discovered that he had hanged himself. In Patzig, which like this action dealt with the due process right of an arrestee to be free from "abusive treatment," our Third Circuit relied on Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), in determining whether the plaintiff's due process rights were violated. In Estelle, supra, the Supreme Court stated that a claim for relief under the cruel and unusual punishment clause of the Eighth Amendment requires an allegation of "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 292. Our Third Circuit has stated that "the indifference must be deliberate and the actions intentional." Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976).
The complaint in this action alleges only that the moving defendants were negligent. There is no allegation that the officers' actions in not monitoring the plaintiff or in not being able to revive him were intentional, that they were deliberately indifferent to the needs of the decedent at any time, or that there were any policies which were employed or acquiesced in by the defendants which showed a deliberate indifference to the decedent's needs. There was no allegation that Officers Ridge and DiJoseph, who responded to the telephone call of the plaintiff's wife, directly caused the hanging. Furthermore, the allegations in the complaint do not give rise to any set of facts from which the plaintiff could prove that the defendants acted in a deliberately indifferent manner to the needs, if any, of the decedent.
In Patzig, supra, the plaintiff's decedent was arrested by a Philadelphia police officer. After being placed in an unoccupied cell, she began to act "hysterically." Id. at 845. A police matron attempted to calm her but failed and then left her alone. Shortly thereafter the decedent was found hanging by her belt, which, in violation of police regulations, had not been taken from her. The Patzig Court stated that the
police personnel may have acted negligently, perhaps even callously; but such actions do not amount to the "intentional conduct characterizing a constitutional infringement." ... "More is needed than a naked averment that a tort was committed under color of state law."
Id. at 848. The Court will therefore dismiss the first cause of action in the complaint because it fails to allege a violation of the decedent's due process rights.
In the recent decision of Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the Supreme Court, in an action wherein a prisoner alleged the negligent loss of his "hobby kit" by prison officials, addressed the issue of whether a section 1983 action could be maintained where the plaintiff's sole allegation was that state officials acted negligently. Justice Rehnquist, writing for the Court, stated:
(T)he question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.