rights — when her husband was injured through unlawful government
Circuit and district courts around the country have held both for and
against the Bell/Bailey proposition that spouses, parents and children
can assert independent § 1983 claims for the vindication of their own
Due Process rights when their family members are subjected to deadly or
damaging unlawful actions by the government. See, e.g., Crumpton v.
Gates, 947 F.2d 1418, 1422-1423 (9th Cir. 1991) (child can recover, as of
date of his birth, under § 1983 for unwarranted interference with his
rights to familial companionship and society after unlawful shooting of
father by police which occurred while child was still a fetus); Rhyne v.
Henderson County, 973 F.2d 386, 391 (5th Cir. 1992) ("Rhyne has standing
to recover for her own injuries arising out of the wrongful death of her
son."), reaff'd in Flores v. Cameron Co., Tex., 92 F.3d 258, 271 (5th
Cir. 1996); Robinson v. Johnson, 975 F. Supp. 950, 955 (S.D.Tex. 1996)
(applying Texas law, loss of consortium available under § 1983 when a
spouse, parent, or child suffers actionable non-fatal physical injury);
but see Trujillo v. Board of County Commissioners of the County of Santa
Fe, 768 F.2d 1186, 1190 (10th Cir. 1985) (disagreeing with Bell, holding
that allegation of intent to interfere with a particular relationship
protected by the freedom of association is required to state a claim under
§ 1983); Harbury v. Deutch, 233 F.3d 596, 604 (D.C. Cir. 2000)
(refusing to extend a constitutional right of familial association to
cases in which the government indirectly interfered with a spousal
relationship by allegedly murdering woman's husband, noting that the
Bailey and Bell decisions tend to disagree); Helleloid v. Independent
School District Number 361, 149 F. Supp.2d 863, 877 (D.Minn. 2001)
(parents of child sexually abused by school district could not recover
under § 1983 because they were not the target of the district's
actions); Winton v. Board of Com'rs of Tulsa Co., Okl., 88 F. Supp.2d 1247,
1254 (N.D.Okla. 2000) (no constitutional right to spousal consortium,
therefore no § 1983 claim for a spouse in her own right), explaining
Berry v. City of Muskogee, Okl., 900 F.2d 1489, 1506-1507 (10th Cir.
1990); Walters v. Village of Oak Lawn, 548 F. Supp. 417, 419 (N.D.Ill.
1982) (loss of consortium does not rise to the constitutional level).
Regardless of the different outcomes nationally, we believe we would be
obligated to apply the Third Circuit's Bailey reasoning to a situation in
which a wife claims that her constitutional right to her husband's
services and association was deprived by government action. We believe
that spouses possess a liberty interest under the Due Process Clause
which entitles them to pursue happy, intimate association free from
unlawful government intrusion. When a law enforcement officer, under
color of law, brutalizes a citizen, as Officer Fryer allegedly did,
thereby causing serious physical and/or psychological injuries, a wife's
ability to consort with her husband may be seriously impaired, warranting
the payment of damages under § 1983 by the offending individual or
In the case before us, however, we find that Mrs. Pahle has
inadequately pled her individual, constitutional claims under §
1983. As noted above (see supra at footnote 8), we can infer that
Defendants received notice of Mrs. Pahle's derivative, state loss of
consortium claim, which was vaguely included in Plaintiffs' Complaint.
However, the Complaint gives no hint that Mrs. Pahle planned to argue
that her own constitutional rights were violated — a novel argument
— and Defendants could not have had notice of such allegations.
paramount purpose of a pleading in federal practice `is to inform a
party of the nature of the claims . . . being asserted against him and the
relief demanded by his adversary." 5 Wright & Miller, Fed.Practice and
Procedure, § 1182 at 12. See Continental Collieries v. Shober,
130 F.2d 631, 635 (3d Cir. 1942); Usery v. Chef Italia, 540 F. Supp. 587,
591 n. 11 (E.D.Pa. 1982). Furthermore, "under our system of notice
pleading, a complaint need not allege all the facts to show liability, but
it must allege all the theories to show liability." Muth v. Dechert,
Price & Rhoads, 391 F. Supp. 935, 938 (E.D.Pa. 1975). Thus, although we
believe Mrs. Pahle could have alleged a personal (as opposed to derived)
right of recovery for loss of consortium under § 1983, she did not
adequately allege this theory, and we grant summary judgment to
Defendants as to all federal claims by Mrs. Pahle.*fn12
Based on the foregoing, we will deny summary judgment with respect to
Mr. Pahle's claims against Officer Fryer under § 1983 that he was
detained, arrested and transported without probable cause and using
excessive force, his claim for attorney's fees under § 1988, and his
state claims against Officer Fryer for assault and battery and false
imprisonment. We will also deny summary judgment as to Mrs. Pahle's
derivative state claim against Officer Fryer for loss of consortium. We
will grant summary judgment as to all other issues and against all other
An appropriate order follows.
AND NOW, this 26th of March, 2002, consistent with the foregoing
opinion it is hereby ORDERED as follows:
Plaintiff's Praecipe to Dismiss Certain Defendants, filed February 25,
2002, in which Mr. Pahle withdraws his claims against Douglas/Berks
Township, Douglas/Berks Police Department, Tod Heckman and Dana
Dotterer, is GRANTED and these claims are dismissed with prejudice.
Defendants' Motion for Summary Judgment Pursuant to Fed.R.Civ.P.
56(c), filed on February 4, 2002, is DENIED with respect to:
Ted R. Pahle's § 1983 claims against Katherine M. Fryer in her
individual capacity that he was detained, arrested and transported on
June 28, 1998 without probable cause;
Ted R. Pahle's § 1983 claim against Katherine M. Fryer in her
individual capacity that she used excessive force in arresting him on
June 28, 1998;
Ted R. Pahle's § 1988 claims for attorney's fees against Katherine
M. Fryer in her individual capacity;
Ted R. Pahle's assault and battery claims against Katherine M. Fryer in
her individual capacity;
Ted R. Pahle's false imprisonment claim against Katherine M. Fryer in
her individual capacity; and
Lynn Ann Pahle's derivative claim for loss of consortium*fn13 against
Katherine M. Fryer in her individual capacity.
Defendants' Motion for Summary Judgment Pursuant to Fed.R.Civ.P.
56(c), filed on February 4, 2002, is GRANTED as to all other claims
against Katherine M. Fryer and all other Defendants, and these claims are
dismissed with prejudice.
This matter will proceed to trial. The trial will be bifurcated, with
Officer Katherine M. Fryer's liability to Mr. Pahle being tried first and
Mrs. Pahle's derivative claim and Plaintiffs' damages being tried
subsequently, if the trier of fact finds liability to Mr. Pahle.