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February 10, 1994


The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 In deciding defendants' motion to dismiss, I must determine whether plaintiff's allegation that the defendants violated his constitutional right to privacy by taking photographs of him without his consent while he was in custody as a pre-trial detainee states a cognizable constitutional claim. I must also decide whether his Fourteenth Amendment right to medical treatment was violated by delaying a necessary trip to the hospital after a vehicle accident which occurred in transporting him from court to jail. I find that the plaintiff has stated a constitutional violation in both cases.

 I must next decide whether the defendants were entitled to qualified immunity because the constitutional rights violated by the defendants were not "clearly established" at the time of the incidents. I find that defendants' photographing conduct did not violate a clearly established right, and that the medical attention conduct did violate a clearly established right.

 The plaintiff alleges in his complaint that the following sequence of events, which for purposes of this motion I must accept as accurate, occurred on January 31, 1991:

 The plaintiff was representing himself pro se on criminal charges in the Federal Courthouse at 601 Market Street in Philadelphia. The plaintiff was in custody as a pre-trial detainee. At approximately 6:00 p.m. the plaintiff and other prisoner were escorted by two unnamed marshals (designated Marshals #1 and #2 in plaintiff's complaint) *fn1" from his holding cell to the parking lot. There they met a third marshal (Marshal #3). Marshal #3 instructed Marshal #1 to hold the prisoners so that he could take their pictures. The allegations infer that the photographs were not for law enforcement or security purposes.

 The plaintiff told the Marshals that the picture-taking was illegal and racist. Marshal #3 cursed the plaintiff, using racial epithets, and told him to shut up. Photographs were taken of the plaintiff handcuffed and sitting in the back of the transportation van. At least one other prisoner was forced to be photographed as well. The plaintiff attributed the picture-taking activity to Marshals #1 and #3. Marshal #2 merely observed the incident.

 Marshal #4, who was not previously identified in the complaint, upbraided Marshal #2 for not interceding to stop Marshals #1 and #3. This led to an altercation between #2 and #4. After the confrontation ended, Marshal #2, the intended driver of the van, passed on that responsibility to #1 because he was too shaken to drive.

 Marshals #1 and #2 were the only Marshals in the van, with Marshal #1 driving, when they left to take the prisoners back to prison. As they traveled north on 6th Street, less than 100 feet from the federal courthouse, Marshal #1 cut from the left into the right lane causing the van to be struck by another car from behind.

 The plaintiff felt pain in his neck and back and numbness in his legs, and informed the Marshals that he needed to go to a hospital. Another prisoner complained he was injured as well. According to the complaint, there was a hospital across the street from the accident. The plaintiff informed the Marshals of this circumstance. Marshal #1 repeatedly rejected any entreaties for medical care.

 The van and its occupants waited forty-five minutes at the accident site while the Marshals prepared a police report. The Marshals laughed and joked during this wait. Eventually Marshal #2 suggested that medical care should be pursued. Marshal #1 sloughed off this suggestion.

 Marshal #1 then drove the prisoners back to the Philadelphia Detention Center. Upon arriving, Marshal #1 left the prisoners in the van while he went into the administrative section of the prison. After ten minutes, he returned and informed Marshal #2 that the prisoners had to be taken to the hospital. When Marshal #2 asked what the closest hospital was, Marshal #1 responded:" I'm not taking them to none of them fancy hospitals, those bastards are going to Guiffre, where they take your kidney out to operate on your toe!"

 Marshal #1 then drove the van to the Girard Medical Center at 8th and Girard Streets. This took approximately 30 minutes. The prisoners were left waiting in the parking lot for approximately thirty minutes in cold weather. After the plaintiff complained about the wait, Marshal #1, in retaliation, made the prisoners wait twenty more minutes.

 At approximately 9:30, three hours after the accident, the plaintiff was taken into the hospital. The plaintiff told a nurse of his complaints -- pain in his back and neck, and numbness in his legs. Marshal #1 told the plaintiff to stop faking. Marshal #1 took the nurse aside and whispered to her.

 The nurse took x-rays, and gave the plaintiff orange pills for pain. When the plaintiff asked if he was to be admitted to the hospital ...

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