The opinion of the court was delivered by: Brody, J.
Now before me are cross-motions for summary judgment.*fn1 For the
reasons that follow, I will grant defendants' motion and deny
Plaintiff brings claims against the City of Philadelphia and
several police officers pursuant to 42 U.S.C. § 1983. She claims
that, while she was having a heart attack, police officers failed
to transport her to the hospital and blocked the road with parked
police cars preventing someone else from driving her to the
Plaintiff walked toward the accident and saw an overturned truck,
a smashed car and at least five police vehicles. Traffic was
blocked and there were people standing around watching. Plaintiff
asked an officer if the accident had anything to do with an armed
man. The officer responded, "yes," and told the plaintiff that
there had been a shooting. Plaintiff told the officer that: "If
you are looking for a man with a gun, he just came through my
house."*fn3 Pl. Dep. at 149. Plaintiff, accompanied by police
officers, then returned to her home. The officers searched her
home and plaintiff showed the officers where the gunman left her
house and in which direction he fled.
An unknown officer told plaintiff to go in and secure her house,
as she had to go to the police station and give a statement.
Plaintiff responded that her children would be coming home from
school soon and there would be no one to watch them when they
arrived home. The officer told plaintiff that they would get
someone to watch her children. When plaintiff went back in her
home after turning off the lights and locking the windows and
doors, she went upstairs to the bathroom to rinse her face. As she
bent over the sink, she experienced shortness of breath and chest
pains. Plaintiff came downstairs and walked outside where she saw
Defendant Officer Beal and told him she could not go with him to
the police station. When Beal asked the plaintiff why she could
not go to the police station, plaintiff responded "I'm having
terrible chest pain and shortness of breath." Pl. Dep. at 157-58.
Beal told an unknown officer that plaintiff could not go with them
because she was experiencing chest pain and shortness of breath.
The unknown officer looked at plaintiff and said, "well, just get
her name and number." Pl. Dep. at 158. Beal then asked for
plaintiff's name and phone number and told her that they would get
back to her.
Plaintiff's neighbor, Kris Bratten, came out of her house and
asked plaintiff, "what's the problem?" Pl. Dep. at 158. Plaintiff
responded, "Kris, I am having terrible chest pain and shortness of
breath." Pl. Dep. at 158. Plaintiff asserts that while the
officers were in close proximity, she repeated several times that
she was having terrible chest pains. Another neighbor, Linda
Maiden, also asked plaintiff what was wrong. Maiden then asked how
plaintiff was going to get to the hospital. Maiden asked Beal and
other unknown officers if they could take plaintiff to the
hospital. Plaintiff did not hear the
officers' responses, but she heard Maiden ask the officers three
times if they could take plaintiff to the hospital.*fn4 Then,
the plaintiff asked the officers if they could drive her to the
hospital and explained again that she thought she was having a
heart attack. The officers told the plaintiff that they would
not take her to the hospital. Plaintiff claims that her condition
worsened as she waited for transportation (from chest pains and
shortness of breath to back pain and left arm pain radiating down
to her elbow).*fn5
Maiden then offered to drive plaintiff the two blocks to the
hospital. Maiden was unable to take her there, however, because
the street was blocked with police cars. Therefore, plaintiff
walked, with the assistance of Maiden, to the hospital. Maiden
estimated that they walked a quarter mile from the plaintiff's
home to the hospital. Plaintiff asserts that her condition
worsened during the walk to the hospital. As a result of the heart
attack, plaintiff sustained permanent heart damage and must take
heart medication for the rest of her life. Additionally, plaintiff
asserts that she has "changes of consciousness," mood and behavior
and has been diagnosed with Posttraumatic Stress Disorder.
Plaintiff claims that the officers' refusal to transport her to
the hospital delayed her treatment and caused her condition to
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The party
moving for summary judgment must inform the district court of the
basis for its motion, and identify those portions of record "which
it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). When the moving party does not bear
the burden of persuasion at trial, as is the case here, its burden
may be met by pointing out "an absence of evidence to support the
nonmoving party's case." Id. at 325.
Once the moving party has filed a properly supported motion, the
burden shifts to the nonmoving party to "set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). The nonmoving party "may not rest upon the mere allegations
or denials of the [nonmoving] party's pleading," id., but must
support its response with affidavits, depositions, answers to
interrogatories, or admissions on file. See Celotex, 477 U.S. at
324; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657
(3d Cir. 1990). The "evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); see also Big Apple BMW, Inc. v. BMW
of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Plaintiff brings two claims pursuant to 42 U.S.C. § 1983. By itself,
1983 does not create any rights, rather 1983 provides a remedy for
violations of rights created by the Constitution or federal law.
See, e.g., Morse v. Lower Merion School District, 132 F.3d 902,
906-07 (3rd Cir. 1997). In order to state a claim under 1983,
plaintiff must show that defendants, acting under color of state
law, deprived her of a right secured by the Constitution or the
laws of the United States. See id. at 907. Plaintiff alleges that
defendants violated her Fourteenth Amendment right to substantive
due process by failing to help her or actively delaying her
efforts to reach the hospital, when she was having a heart attack.
1983 claims: (A) against individual police officers alleging that
the officers created a danger resulting in harm to the plaintiff
and (B) against the City of Philadelphia alleging an
unconstitutional custom or practice and a failure to train its
The State-Created Danger Exception
In general, state actors have no affirmative obligation to protect
citizens from injuries caused by others or themselves. See
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
195-96, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). There are two
exceptions to this rule: (1) the special relationship exception,
which allows the plaintiff to recover when the state enters into a
special relationship with a particular citizen and fails to
protect the health and safety of the citizen to whom it owes an
affirmative duty,*fn6 and (2) the state-created danger exception,
which allows the plaintiff to recover when, under certain
circumstances, a state actor creates a danger that causes harm to
an individual. See Morse v. Lower Merion School District,
132 F.3d 902, 907 (3rd Cir. 1997). Plaintiff brings her claims against
Defendant Beal and other police officers pursuant to the
state-created danger exception.
1. Third Circuit instruction on the state-created danger exception
In Kneipp v. Tedder, 95 F.3d 1199 (1996), the Third Circuit
enumerated a four part test that a plaintiff must satisfy to
prevail on a claim based upon a danger created by a state actor:
(1) the harm ultimately caused was foreseeable and fairly
(2) the state actor acted in willful disregard for the safety of
(3) there existed some relationship between the state and the
(4) the state actors used their authority to create an
opportunity that otherwise would not have existed for the
harm to occur.
See id. at 1208 (citing Mark v. Borough of Hatboro, 51 F.3d 1137,
1152 (3rd Cir. 1995)).
Applying this four part test, Kneipp held that there was a triable
issue of fact as to whether the defendants (police officers) had
violated Samantha Kneipp's Fourteenth Amendment right to
substantive due process when, despite her severely intoxicated
state, the defendants released her to return home alone after
having earlier allowed her husband, Joseph Kneipp, to leave the
scene. When the officers stopped the Kneipps they
were only one-third of a block away from their home. See id. at
1201. Before Samantha's detention by the police, for public
drunkenness and disturbing the peace, Joseph was in the process
of helping Samantha home because she was too intoxicated to walk
on her own. After the officers detained the Kneipps, Joseph told
one of the officers that he had a babysitter watching his son
and that he needed to get home. The officer told Joseph that he
could leave. Joseph testified that because Samantha was drunk,
he assumed that the police officers were going to take her either
to the hospital or to the police station. See id. at 1202. The
Third Circuit reasoned that "[a] reasonable jury could believe that
Joseph was correct in assuming that the police would take care
of Samantha given his need to get home and care for their son."
Id. at 1202 n. 7. In evaluating whether the officer acted with
"willful disregard" in allowing Samantha to walk home on her own,
the court held that "the plaintiffs have adduced sufficient evidence
to raise a material issue as to whether [the officer] acted in
willful disregard for Samantha's safety. . . . by [the officer's]
own testimony, he admitted that he knew Samantha was drunk." Id.
at 1208-09. In conclusion, the Third Circuit held that "the
evidence submitted was sufficient to raise a triable issue of fact
as to whether the police officers affirmatively placed Samantha in
a position of danger." Id. at 1211.
In Morse v. Lower Merion School District, 132 F.3d 902 (3rd Cir.
1997), the Third Circuit again applied the state-created danger
exception, this time upholding the dismissal of the plaintiff's
claims. In Morse, a teacher was shot and killed in the Ardmore
Child Care Center by a local resident with a history of mental
illness. The gunman entered the school through an unlocked rear
door. See id. at 904. The plaintiffs in Morse asserted that the
School District had a written policy requiring that all side and
back entrances be locked at all times and the School District was
aware of, and facilitated, construction workers' access through
the unlocked back door. See id. Applying the Kneipp test, the
Third Circuit concluded that the ...