The opinion of the court was delivered by: Dalzell, J.
Monet Bey, a minor who was eight years old at the time of the incidents giving rise to this lawsuit, and her mother, Elizabeth Bey, sue defendants the City of Philadelphia (the "City"), the Philadelphia Police Department ("PPD"), Police Officers John and Jane Doe (during discovery these two were identified as Officers Troy Ragsdale and Krystal Thornton), the Pennsylvania Society for the Prevention of Cruelty to Animals ("PSPCA"), and Michelle A. Hodges. The action arises out of an accident in which a stray dog chased Monet Bey into the street and Hodges's car then hit her.
On June 14, 2010 we entered an Order in which we granted PSPCA's motion to dismiss Counts II and V of the Complaint with prejudice. Thus, the only remaining claims are one for a 42 U.S.C. § 1983 violation against the City, the PPD and the two officers (the "City Defendants") (Count I), a state law negligence and gross negligence claim against the PSPCA (Count III), and a state law negligence claim against Hodges (Count IV).
The City Defendants have moved for summary judgment on the § 1983 claim, as has the PSPCA on the negligence claim. The Beys responded to the motions for summary judgment and then moved to amend their complaint. We will address these motions here.
At about 3:00 p.m. on August 22, 2009, Police Officers Krystal Thornton and Troy Ragsdale responded to a "vicious dog" call in the area of the 2600 block of South 66th Street in Philadelphia, Pennsylvania. The City Defendants' Motion for Summary Judgment ("Def. MSJ"), Ex. D at 6:18-7:17, Deposition of Officer Troy Ragsdale. When the officers arrived, they observed a stray dog that did not appear to be vicious. Id., Ex. E. The officers fed the dog and placed it in a fenced area in front of a home on that block. Id., Ex. F at 6:7-20, Deposition of Officer Krystal Thornton. This house was not the residence of either plaintiff. The officers notified dispatch through police radio that the dog was in the yard and that the PSPCA or Pennsylvania Animal Care and Control Association should be called "to come get the dog". Id. at 7:18-19. The officers did not observe the dog growl, bark or run. Id., Ex. D at 20:14-21; Ex. F at 44:24-45:13. The officers then prepared the necessary paperwork and returned to their patrol duties.
Plaintiff Monet Bey was outside jumping rope on the 2600 block of South 66th Street when the officers placed the dog inside the fenced-in-yard and shut the gate. Officer Thornton approached Monet and her friends and told them to stay away from the dog.
Id., Ex. B at 48:24-49:12, Deposition of Monet Bey. After the officers left, the dog escaped the enclosed yard and began to roam the neighborhood again. At about 6:15 p.m., Monet saw the dog and, afraid that it would bite her, ran into the street where a passing car driven by Michelle Hodges ran over Monet's foot, causing extensive damage to it. Id., Ex. B at 28:22-29:8; Ex. C at 9:16-19, Deposition of Elizabeth Bey. Plaintiff Elizabeth Bey was inside her home when the accident happened. Id., Ex. C at 5:14-17. A neighbor knocked on Ms. Bey's door and told her about the accident, at which time Ms. Bey immediately went to her daughter, who was lying on the street between two parked cars with her foot wrapped in a towel. Id. at 7:16-9:19. Ms. Bey did not learn about the loose dog or the officers until she was at the hospital with Monet. Id. at 38:23-39:2.
The Beys contend that the City Defendants violated
Monet's substantive due process rights under the Fourteenth Amendment. The Beys seek relief pursuant to 42 U.S.C. § 1983 for a violation of their substantive due process rights under a theory of state-created danger.
The City Defendants move for summary judgment. First, they argue that plaintiffs have failed to establish the deprivation of a right secured by the Constitution pursuant to the Fourteenth Amendment because the Beys cannot establish a substantive due process violation under a theory of state-created danger. The City Defendants contend that (1) Monet's accident was not a foreseeable or fairly direct consequence of the officers' action of locking the dog in a fenced yard, (2) the actions of the officers do not shock the conscience, (3) Monet was not a foreseeable victim or a member of a discrete class, and (4) the affirmative acts of the officers did not render Monet more vulnerable that she would have been if the officers had not acted. Second, the City Defendants argue that plaintiffs cannot satisfy their burden of proof under Monell v. Dep't of Social Services, 436 U.S. 658 (1978), and its progeny to hold the City liable for Monet's injuries.
Section 1983 does not create substantive rights but provides a remedy for the violation of federally created rights. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). To establish a prima facie case under § 1983, plaintiffs must demonstrate that (1) the officers deprived them of a federal right, and (2) they acted under color of state law. Id. The first step in evaluating a § 1983 claim is to "identify the exact contours of the underlying right said to have been violated" and determine "whether ...