deprivation of any guaranteed right, privilege or immunity.
That is not to say, however, that an individual who is free from custody cannot have his constitutional rights infringed. Absent state custody, an individual has no constitutional right to receive or to be provided with medical care by the state. There is also no general constitutional right, absent state custody, to have emergency transportation provided by the police to take a person to a place where he can receive medical treatment. Cf. Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir. 1983) ("The Fourteenth Amendment . . . sought to protect Americans from oppression by state government, not to secure them basic governmental services."). The Constitution is sometimes said to be a charter of negative rather than positive liberties. Id. at 1205 (citing Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)). A negative liberty is freedom from state interference or intrusion, in effect, "being let alone by the state." Jackson, 715 F.2d at 1204. One of the negative liberties guaranteed by the Constitution is the right to be free from undue state interference or hindrance in promptly obtaining or attempting to obtain available medical treatment when it is needed. The life and/or liberty interests of the fourteenth amendment's due process clause encompass the right promptly to seek available medical care without undue state interference or hindrance irrespective of the state's custody or control over an individual.
Plaintiff's complaint and amended complaint state a cause of action pursuant to section 1983 under either theory outlined above. If plaintiff can establish that the state exercised such a degree of control over the decedent that the positive duty to provide care and transportation attached,
she may be able to recover for the state's failure to act. Plaintiff may also be able to establish that the state intentionally interfered with the decedent's right promptly to obtain available medical treatment when he needed it by deliberately preventing him from proceeding to the hospital.
In order to prevail against defendant, City of Philadelphia, the allegedly unconstitutional actions of the police officers must implement or execute a policy statement, ordinance, regulation or decision officially adopted and promulgated by the City's officials or officers. Monell v. New York City Department of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The city may not be held liable merely on the basis of respondeat superior. Id. at 691.
Plaintiff's original complaint plainly failed to state a cause of action against the city. Plaintiff has, however, filed an amended complaint. The amended complaint alleges that the city has a policy or custom of limiting the transportation of unconscious and seriously ill persons to patrol wagons and of preventing use of an alternative source of transportation, which, in this case, delayed access to medical care.
There is no constitutional right for an individual not in custody to be provided with or to receive emergency transportation to a place where medical treatment may be obtained. A policy or custom prohibiting such transportation is therefore not unconstitutional. If, however, there is a duty to provide treatment, the failure to provide emergency transportation may be actionable under section 1983. If plaintiff can prove that the control over plaintiff's decedent exercised by the police was such that the duty to provide treatment arose, then the policy or custom of the city that is alleged in the amended complaint, if established, may have been implemented by the police officers in refusing to provide emergency transportation and liability against the city may be established.
Plaintiff may also be able to establish a cause of action against the city by proving that, after stopping the car that was transporting Mr. Baldi to the hospital, the police officers refused to allow the driver to transport plaintiff's decedent to the hospital, and would only permit transportation to be made by police wagon. In order to recover against the city for such a claim, plaintiff must establish that plaintiff's decedent was detained solely because the officers were waiting for a police wagon to arrive and transport Mr. Baldi to the hospital. If the vehicle was detained for any other reason, or for no apparent reason, the city's alleged policy would not have caused the harm. In short, plaintiff has stated a cause of action against defendant city sufficient to withstand a motion for judgment on the pleadings.
Plaintiff has named the City of Philadelphia Police Department as a party defendant. The Police Department will be dismissed because it does not have a separate corporate existence; suits against the department "shall be in the name of the City of Philadelphia." Pa. Stat. Ann. tit. 53, § 16257 (Purdon 1957).
In conclusion, with regard to the motions to dismiss the complaint and amended complaint, the motions as to defendants Michael Zukowski, three unidentified Philadelphia Police Officers and the City of Philadelphia will be denied. The motion as to defendant Philadelphia Police Department will be granted.
Plaintiff has filed a motion to remand this action to the Court of Common Pleas of Philadelphia County asserting that it was improperly removed to this court. Plaintiff asserts that there is no separate and independent claim or cause of action that merits removal pursuant to 28 U.S.C. § 1441. Plaintiff's position is without merit.
Plaintiff contends that "under [ 28 U.S.C. § 1343] granting original, but not exclusive, jurisdiction for civil rights claims, a plaintiff may choose between federal and state forums. If a plaintiff selects the state forum, the defendant cannot remove. See, Moore's Federal Practice, Volume 1, Paragraph 0.60 , page 637." Plaintiff's Brief in Support of Motion to Remand at 5-6. Plaintiff's position is clearly and totally wrong. It would eviscerate the removal statute in cases involving civil rights claims, which are indisputably claims or rights arising under federal law. See 42 U.S.C. § 1983; 28 U.S.C. § 1441(b). The full context of plaintiff's reference to Professor Moore is self-explanatory:
On the other hand in some situations, a plaintiff may have a choice between federal and state forums; and if he chooses the state forum the defendant cannot remove. A good example is an action brought under the Federal Employers' Liability Act. There are others.
1A J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore's Federal Practice §§ 0.60 (2d ed. 1976). Neither Professor Moore nor anyone else to my knowledge has ever opined that a civil rights action was one of the few situations where a plaintiff's choice of state court prevails. In fact, 28 U.S.C. § 1441(b) provides to the contrary.
Plaintiff's final and claimed "most significant" contention in support of remand is that "the defendants have not plead, have not shown, and cannot show that the civil rights claim in plaintiff's complaint is a 'separate and independent' claim or cause of action." Plaintiff's Brief in Support of Remand at 6. This contention by plaintiff is so totally devoid of merit that it warrants only brief treatment. Defendants' right to removal in this case stems from 28 U.S.C. § 1441(b) because it involves a civil action founded on a claim or right arising under the Constitution and laws of the United States over which this court has original jurisdiction. Plaintiff's third cause of action was for violation of the decedent's constitutional rights under 42 U.S.C. § 1983. Unquestionably, this court has original jurisdiction over such a claim and removal was proper. Section 1441(c), which contains the "separate and independent" language, merely allows this court, in its discretion, to decide whether to hear the entire action that was filed in state court or only that part of it over which there is federal jurisdiction. There is no doubt that plaintiff's section 1983 claim is "a separate and independent claim or cause of action" that would be removable if sued upon alone and has been joined with claims that are otherwise non-removable. I have therefore exercised my discretion to hear the entire case pursuant to 28 U.S.C. § 1441(c). It would be in the interest of none of the parties to hear only the constitutional claims in federal court and the state claims in state court. The federal claims cannot be remanded. Therefore the entire case should remain in this court where it has been properly removed.
Upon consideration of defendants' motions to dismiss the complaint and the amended complaint, plaintiff's motion to remand and the memoranda in support of and opposition thereto, it is
Ordered that defendants' motions to dismiss the complaint and amended complaint against defendant Michael Zukowski, three unidentified Philadelphia police officers and the City of Philadelphia are Denied and the motions are Granted as to defendant Philadelphia Police Department.
It is further Ordered that plaintiff's motion to remand is Denied.