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FOSTER v. CITY OF PHILADELPHIA

January 30, 2004.

CHRISTOPHER FOSTER, Plaintiff,
v.
CITY OF PHILADELPHIA, and PHILADELPHIA POLICE DEPARTMENT, and POLICE CORRECTIONAL OFFICER, SHELDON MOORE, BADGE #133 and IRA WATTERSON, EMPLOYEE OF CITY OF PHILADELPHIA, and FELISA MASSEY, EMPLOYEE OF CITY OF PHILADELPHIA, and ROBERT OTTO, EMPLOYEE OF CITY OF PHILADELPHIA, and PHILADELPHIA FIRE DEPARTMENT, and PHILADELPHIA POLICE OFFICER, JOHN OR JANE DOE, BADGE #4946, and PHILADELPHIA POLICE OFFICER, JOHN OR JANE DOE, BADGE #1169, and PHILADELPHIA POLICE OFFICER, ANNAMAE LAW, BADGE #2734, and PHILADELPHIA POLICE OFFICER, JOHN OR JANE DOE, BADGE #2596, and SERGEANT McGOWAN, BADGE #8611 and CPL. RIZZO, BADGE #8107, Defendants



The opinion of the court was delivered by: LEGROME DAVIS, District Judge Page 2

MEMORANDUM OPINION

Presently before the Court is Defendants' Motion for Summary Judgment (Dkt. No. 17). For the reasons discussed below, Defendants' Motion is Granted in part and Denied in part.

I. Background

  Plaintiff asserts 42 U.S.C § 1983 claims against the City of Philadelphia, the Philadelphia Police Department, the Philadelphia Fire Department and numerous employees of the City of Philadelphia Police and Fire Departments.*fn1 Specifically, Counts I, III, and IV raise state law negligence claims based on the care Plaintiff received while in police custody. Count II raises a claim for violation of Plaintiff's Fourteenth Amendment right to be secure in his life and person and to receive proper medical care while confined pursuant to state authority. Count V alleges a violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment allegedly caused by the City's failure to adequately train its employees as to the care of potentially suicidal detainees. In Count VII, Plaintiff alleges a violation of the Eighth Amendment proscription against cruel and unusual punishment, arising from the medical treatment Plaintiff received as a pretrial detainee. Finally, Count VI asserts a state law bad faith claim arising from medical care provided to Plaintiff while in custody. Page 3

  Defendants move for summary judgment on all claims. Defendants argue that Plaintiff's claims on Counts I, III, and IV are barred by 42 Pa. C.S.A. §§ 8541-8542, which grants immunity to the City of Philadelphia for most tort claims. With respect to Counts II, V, and VII Defendants assert Plaintiff cannot establish deliberate indifference to a known medical need. Finally, the City contends summary judgment should be granted as to Count VI because a bad faith cause of action is not cognizable under Pennsylvania common law.

  The considerable record in this action reveals the following:

  At approximately 12:30 a.m. on July 29, 1999, Defendant Police Officer Anna Mae Law ("Law") arrested Plaintiff, Christopher Foster ("Foster" or "Plaintiff), age 22, on the misdemeanor charge of obstructing the highway. This offense, which is graded as either a summary or third degree misdemeanor, arises from blocking or obstructing vehicular traffic after police admonition. See 18 Pa. C.S.A. § 5507.

  Upon arrest, Plaintiff was transported to the 26th Police District. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment at 2; Dkt. No. 19; see also Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment at 1; Dkt. No. 17). At the 26th Police District, Robert Otto ("Otto") questioned Foster and completed the standard Detainee Medical Checklist Form (the "Medical Checklist")*fn2 for Page 4 Plaintiff. (Pl. Br., Exhibit F). The responses contained in this Medical Checklist indicate that Foster responded in the negative to each of the thirteen questions contained on the form. (Id.) Although Foster was confined in a standard cell in the 26th Police District, he was constantly in the presence of police personnel. (Defendant Law's Response to Plaintiff's Interrogatories Nos. 15, 24; Def. Br., Exhibit E).

  A few hours later, Foster was transferred from the 26th Police District to the Front and Westmoreland Police District. (Id., at Response 16.) At Front and Westmoreland, Officer Livingstone ("Livingstone") interviewed Foster and completed a new Medical Checklist Form.*fn3 At that time, Foster answered "yes" to the question "[h]ave you ever tried to kill or harm yourself? (Defs.' Br. at 1; Defendant Law's Response to Plaintiff's Interrogatories No. 6). As a result of this response, Foster was placed in the plexiglass suicide watch cell. (Id.)

  After several hours at the Front and Westmoreland Police District, Foster was transferred to the East Detectives Division. At East Detectives, Police Officer Ira Watterson ("Watterson") interviewed Foster and completed a third Medical Checklist. (Pl. Br. Exhibit D). At that time, Foster answered "yes" to the question "[h]ave you ever tried to kill or seriously harm yourself?," and acknowledged that he was presently taking medication. (Id.) Watterson made the following Page 5 notations in the "Remarks" section of the form: "1-valium" and "2-od on pills 5/96." (Id.) Foster's affirmative responses also prompted officers at East Detectives to place him in a suicide watch plexiglass cell.

  In the very early hours of July 30, 1999, Foster was transferred to the Police Detention Unit ("PDU") in the Police Administration Building ("PAB"). (Id. at 2) Although Foster's personal property and the paperwork relating to his arrest and confinement were transferred to the PDU,*fn4 receiving officers were not verbally notified that Foster had been placed on suicide watch earlier in his detention. (Id. at 2). Upon Foster's arrival at the PDU, Police Correctional Officer Felisa Massey ("Massey") reviewed his paperwork, including the Medical Checklists generated earlier in Foster's incarceration. (Dep. of Massey at 100). From a review of this file, Massey learned that Foster had previously advised other officers that he tried to kill or seriously harm himself in 1996. (Id. at 67, 70). Thereafter, Massey prepared another Medical Checklist for Foster. Plaintiff, once again, acknowledged a prior suicide attempt and informed Massey that he was presently under the influence of medication. The form completed by Massey records, for the first time, that Foster expressed a present desire to harm himself. (Id. at 59).

  At approximately 8:00 a.m., Police Correctional Officer Sheldon Moore ("Moore") removed Foster from his cell at the PDU for his arraignment, which was conducted via closed circuit television. (Defs.' Br. at 4). After his arraignment, Moore returned Foster to the standard cell. (Pl. Br., Exhibit G). Moore testified that, shortly after placing Foster in the cell, Foster requested his medication and another sandwich. (Id.) Moore further testified that he explained to Foster that he would have to await the nurse's arrival in order to receive medication. Page 6 Approximately one hour later, Foster hanged himself with his shirt from the bars on his cell door. (Dep. of Moore at 61-62)

  Upon learning of Foster's suicide attempt, Officer Moore opened the cell door to approach Foster, and instructed Officer Lewis to summon the PAB paramedic. (Dep. of Moore at 63). Moore then entered the cell, lifted Foster and untied the shirt from around Foster's neck. (Id.) The paramedic used a device to open Foster's airway and Police Corporal Joseph Rizzo ("Rizzo") started CPR compressions. (PI. Br., Exhibit G). When Rizzo tired, Officer Tyrone Parker ("Parker") continued the CPR compressions. (Id.) Moore testified that when the Fire Department Rescue Unit arrived, the PAB paramedic informed Fire Rescue they had been performing CPR for approximately eight minutes. (Id.) Fire Rescue transported Foster to Thomas Jefferson University Hospital.

  Foster sustained severe permanent injuries and lapsed into a coma. (Compl. ¶ 22). On March 27, 2001, the Social Security Administration approved Plaintiff's claim for total disability. At the time the instant action was filed, Foster remained in a coma and was hospitalized in a nursing home. (Id.)

  II. Standard of Review

  Summary judgment is appropriate when "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

  In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses an absence of genuine issues as to any material fact and that he is entitled to judgment as a matter of Page 7 law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).

  III. Counts I, III and IV

  Defendants move to dismiss Count I, III, and IV of the Complaint, asserting that they are immune from liability under the Political Subdivisions Tort Claims Act. Plaintiff contends each of his claims allege willful misconduct and are exempt from the Political Subdivisions Tort Claim Act. (Pl. Br. at 23 n. 12). A review of Counts I, III, and IV reveals that each raises only state law negligence claims. The terms "negligence" or "negligent" permeate each of the Counts; language relating to willful conduct is absent. Absent a waiver by the City of Philadelphia, Defendants are immune from suit pursuant to the provisions of 42 Pa. C.S.A. §§ 8541-8542. The waiver of immunity extends only to eight narrow categories of negligence claims, none of which apply to the present matter. See 42 Pa. Cons. Stat. Ann. §§ 8541-42 (West 1998); see also Sameric Corp. of Delaware. Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998). Summary judgment is granted as to Counts I, III, and IV. Page 8

  IV. Count VI

  Count VI asserts a claim for bad faith based on the care Plaintiff received while in state custody. Defendant argues that no such cause of action exists under Pennsylvania common law. Plaintiff does not dispute Defendants' contention in his brief. Where a party makes no more than a single mention of a claim, the claim is consequently waived. National R.R. Passenger Corp. v. Pennsylvania Public Utility Com'n., 342 F.3d 242, (3d Cir. 2003) (holding that where a party failed to adequately brief an issue, it consequently waived that claim) (citing Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997)); see also Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (issue waived if not raised in party's opening brief). Plaintiff makes no mention of his ...


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