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February 24, 2000


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's motion.

I. Background*fn2

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 hospital.

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 worsen.

II. Standard

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).

The applicable standards by which a court must decide a motion for summary judgment do not change when the parties file cross-motions for summary judgment. See Applemans v. City of Philadelphia, 826 F.2d 214, 216 (3rd Cir. 1987). Each motion must be considered separately and each side must establish a lack of genuine issue of material fact and that it is entitled to judgment as a matter of law. See Nolen v. Paul Revere Life Ins., 32 F. Supp.2d 211, 213 (E.D.Pa. 1998).

III. Discussion

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. Plaintiff brings

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 officers.

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 direct;

(2) the state actor acted in willful disregard for the safety of the plaintiff;
(3) there existed some relationship between the state and the plaintiff; and
(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 ...

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