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MESHKOV v. ABINGTON TWP.

July 15, 1981

Stanley MESHKOV, Administrator of the Estate of Glenn Meshkov, Deceased,
v.
ABINGTON TOWNSHIP and Detective Alex Panechello, Officer Philip J. Ridge, Officer Lawrence DiJoseph, Corporal Bruce Dean, Herbert J. Mooney and Ohio Medical Products



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Before the Court in this civil rights action is the motion to dismiss of various defendants. The plaintiff, Stanley Meshkov, is the father and the administrator of the estate of Glenn Meshkov, who hanged himself in a detention cell at the Abington Police Department on February 27, 1978. The plaintiff initially filed this action against Abington Township (Township) and five of the police officers on the Township's force in their individual and official capacities. The five police officers named in the complaint were Chief Mooney, Corporal Dean, Detective Panechello, Officer Ridge, and Officer DiJoseph. The complaint charged the defendants with violations of 42 U.S.C.A. §§ 1983, 1985(3), 1986, 1988 and the Fourth, Fifth, Eighth and Fourteenth Amendments. Pendent state law claims were also asserted. Subject matter jurisdiction was based upon 28 U.S.C.A. §§ 1331 and 1343. The plaintiff later amended the complaint to include Ohio Medical Products, which the plaintiff alleged was negligent in the design and manufacture of the resuscitator which was used in an attempt to revive the decedent after he hanged himself. Subject matter jurisdiction as to Ohio Medical Products is based on diversity of citizenship. Ohio Medical Products asserted a cross-claim for contribution or indemnity against the other defendants on the basis that the negligence of the other defendants caused the incident upon which this action is based. The Township, Officer Ridge, Officer DiJoseph, Detective Panechello, and Corporal Dean have asserted a cross-claim against Ohio Medical Products for contribution or indemnity.

 The record in this action shows that Chief Mooney has not been served with process by either the plaintiff or Ohio Medical Products. The four other officers and the Township have filed a motion to dismiss the Township, Corporal Dean, and all claims against the other defendants except the section 1983 claims. For the reasons hereinafter set forth, we will grant the moving defendants' motion and will additionally dismiss all claims by the plaintiff against them. We will also dismiss the complaint as to Chief Mooney and the cross-claim by Ohio Medical Products against Chief Mooney.

 The first issue which we must address is the failure of the plaintiff and the defendant Ohio Medical Products to serve Chief Mooney with process. The plaintiff filed the complaint on April 18, 1979, and the summons returned on May 1, 1979 stated that Chief Mooney had not been served. The answer of the Township and the other police officers, which was filed on May 4, 1979, stated that Chief Mooney had retired and moved to Florida. The answer also provided the Florida address of Chief Mooney. Ohio Medical Products filed its answer and cross-claim on February 28, 1980.

 Pursuant to Fed.R.Civ.P. 41(b), a court may dismiss a claim for failure to prosecute. Since the Federal Rules of Civil Procedure do not specify a time within which process must be served, the courts, in determining whether a claim should be dismissed for failure to serve process, have looked to whether the claimant has acted diligently to obtain service of process and whether the delay in serving process has prejudiced the unserved party. Ingram v. Kumar, 585 F.2d 566 (2d Cir. 1978), cert. denied, 440 U.S. 940, 99 S. Ct. 1289, 59 L. Ed. 2d 499 (1979); H. Alpers & Associates v. Omega Precision Hand Tools, Inc., 62 F.R.D. 408 (E.D.Pa.1974).

 The record shows that neither the plaintiff nor Ohio Medical Products has attempted to serve Chief Mooney at his Florida address despite the fact that both parties have known this address for over two years. Nor has any explanation been advanced by either party for their failure to serve Chief Mooney. It therefore appears that neither the plaintiff nor Ohio Medical Products has acted diligently in attempting to serve process on Chief Mooney. Furthermore, Chief Mooney would be prejudiced by having to defend this action now because he has not had a timely opportunity to investigate and prepare his defense to an incident which occurred more than three years ago. The Court will therefore dismiss the complaint as to Chief Mooney and the cross-claim of Ohio Medical Products against Chief Mooney. Charles Labs, Inc. v. Banner, 79 F.R.D. 55 (S.D.N.Y.1978); Afshar v. Procon, Inc., 442 F. Supp. 887 (S.D.N.Y.1977), aff'd mem., 580 F.2d 1044 (2d Cir. 1978).

 In ruling upon a motion to dismiss, the Court must view all of the facts alleged in the complaint as true and construe the complaint in a light most favorable to the plaintiff, who is the non-moving party. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884 (3d Cir. 1977); 2A Moore's Federal Practice P 12.08, at 2266-67 (2d ed. 1979). The complaint alleges that at approximately 4:30 p.m. on February 27, 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 ...


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