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