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Cheryl James; Warren James; and Nicole James v. the City of Wilkes-Barre; Wright Township

August 15, 2011

CHERYL JAMES; WARREN JAMES; AND NICOLE JAMES, PLAINTIFFS
v.
THE CITY OF WILKES-BARRE; WRIGHT TOWNSHIP;
WILKES-BARRE HOSPITAL COMPANY, LLC, D/BA WILKES-BARRE GENERAL HOSPITAL;
THE WYOMING VALLEY HEALTH CARE SYSTEM;
THE WILKES-BARRE CITY POLICE DEPARTMENT;
THE WRIGHT TOWNSHIP POLICE DEPARTMENT;
DR. RUSSELL ELMER JAMES;
DR. NOEL PACLEB ESTIOKO;
AMY LYNN CRAIG; BETH ANN NOBLE;
LORA DENISE PAULUKONIS;
BRIAN THOMAS MORAN;
TANYA LYNN OSTOPICK;
RYAN RUSSELL SELTZER;
CAROLE FLEMING PIROW;
DENNIS MONK;
BRIAN STOUT;
MICHAEL MARSHALL;
CHARLIE CASEY;
KATHY PICKARSKI VIDUMSKI;
JASON FRANK KILLIAN; AND
DR. MAUREEN M. LICTCHMAN DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

Judge Munley

MEMORANDUM

Before the court are the reports and recommendations of Magistrate Judge Mildred E. Methvin (Docs. 109-110), which propose granting in part and dismissing in part the defendants' motions to dismiss the complaint.

Background

This case arises from the events of September 28 and 29, 2009. (Complaint, Exh. 1 to Notice of Removal (Doc. 1) (hereinafter "Complt.") at ¶ 37). On September 28, Plaintiff Nicole James, then fifteen years old, sent text messages to a friend informing that friend that James intended to commit suicide by taking an overdose of ibuprofen pills. (Id. at ¶ 38). At 10:46 p.m., the Defendant Wright Township Police received a phone call informing them of the threatened suicide. (Id. at ¶ 39).

At the time of this phone call, Plaintiff Warren James, father of Nicole, was sleeping. (Id. at ¶ 39). He had taken heart medication, which made him extremely tired and sleepy, shortly before the call came in. (Id. at ¶¶ 40, 12). Plaintiff Cheryl James, Nicole's mother, had also taken prescription medicine that evening. (Id. at ¶ 42). Like her husband, the prescription medication made Cheryl James tired and sleepy, and she was "unable to stay awake shortly after taking it." (Id. at ¶ 11).

¶ 11). She also drank some alcohol on the night in question. (Id. at ¶ 43). All three members of the James family were in the basement of their home with the television on at the time of the incident in question. (Id. at ¶ 41).

Wright Township Police officers Dennis Monk, Brian Stout and Michael Marshall arrived at the James home at 10:49 on September 28. (Id. at ¶¶ 44-45). They informed Cheryl James of Nicole's threats. (Id. at ¶ 44). The officers' noisy arrival awoke Warren James, and he spoke to the police with his wife. (Id. at ¶ 46). Warren and Cheryl James confronted their daughter about the text she had sent her friend. (Id. at ¶ 47). Nicole informed them that she had sent a text and had planned to kill herself, but she reconsidered and did not plan to do herself any harm. (Id.). Though Nicole James's parents believed her denials, the Wright Township police officers insisted that she be taken to the emergency room at Defendant Wilkes-Barre General Hospital ("the Hospital"). (Id. at ¶ 48). Warren and Cheryl James disagreed, wanting to handle the matter in their own home. (Id. at ¶ 49). The police officers then informed Warren and Cheryl James that they would charge the couple with "assisted manslaughter" if Nicole suffered an injury due to their actions. (Id. at ¶ 50). They felt compelled by the officers to give permission to have Nicole taken to the hospital. (Id. ¶ 51).

The police also informed the Jameses that they would need to accompany Nicole to the hospital. (Id. at ¶ 52). Still feeling disoriented from their medication, neither parent felt it safe for them to travel. (Id. at ¶ 53). They informed the police officers of their fears. (Id.). Officers still insisted that at least one parent travel with Nicole James to the hospital. (Id. at ¶ 54). Cheryl James judged herself more capable, and agreed to accompany her to the hospital. (Id. at ¶ 55).

Nicole received screening for a therapeutic drug overdose at the hospital. (Id. at ¶ 56). The screening showed a slight presence of acetaminophen, a presence well within the therapeutic dose for a girl Nicole's age. (Id.). Nicole James had not overdosed on ibuprofen. (Id. at ¶ 57). The police report indicates that Nicole had later admitted to taking approximately 30 ibuprofen pills." (Id.). Cheryl James recalls that medical personnel told her around 12:30 a.m. on September 29, 2009, that her daughter had not overdosed on ibuprofen pills. (Id. at ¶ 58).

After receiving this information, a relieved Cheryl James informed medical personnel that she intended to take her daughter home and arrange for her to receive counseling the next day. (Id. at ¶ 59). No one informed Cheryl James that she could not take her daughter home. (Id. at ¶ 60). Indeed, at 12:32 a.m., Defendant Kathy Vidumsky led Cheryl James to believe that her daughter would soon be discharged. (Id.). Unbeknownst to Cheryl James, however, Defendant Dr. Maureen Litchman appears to have put "a 302 hold" on Nicole at 12:30 a.m. (Id. at ¶ 61). Plaintiffs allege that Nicole James's medical records "appear to have been tampered with," and that other evidence may indicate that the 302 hold, which prevented Nicole's release, may have only been placed an hour after Cheryl James sought her release. (Id. at ¶ 62). Staff members, without informing Cheryl James that she could not leave the Hospital with her daughter, contacted hospital security when Cheryl James announced her intention to leave with Nicole. (Id. at ¶ 63).

At 12:37 a.m. on September 29, Cheryl James called a taxi company for ride home for her and Nicole. (Id. at ¶ 64). A minute later, the Hospital contacted social services, citing "unexplained psychological and social concerns." (Id. at ¶ 65). Cheryl James alleges that Hospital security personnel followed her and her daughter outside the hospital as they approached the taxi. (Id. at ¶ 70). Security did not, however, prevent the two from leaving or inform Cheryl James that she should not leave the hospital. (Id.). James also alleges that Wilkes-Barre Police Officers were waiting near the cab when she and her daughter arrived. (Id. at ¶ 71).

At 1:02 a.m. on September 29, the Wright Township Police Department received a call from Patrolman Charlie Casey of the Wilkes-Barre City Police Department. (Id. at ¶ 66). Casey informed the department that "'Cheryl James and her son got into an altercation and left'" the hospital. (Id.). Casey requested that the Wright Township Police Department check the James residence and insure the "'welfare of any other children in the house.'" (Id.).

At 1:32 a.m. on September 29, someone made an entry into the General Hospital records that contends that Cheryl James had been admitted on "a 302 arrest." (Id. at ¶ 67). The entry also claimed that James had "'hit her head on [a] taxi cab.'" (Id.). James denies she ever hit her head. (Id. at ¶ 68). At the same time, Hospital security contacted the Wilkes-Barre City Police Department. (Id. at ¶ 69).

At 1:33 a.m. Hospital security officers prevented Cheryl and Nicole James from leaving in the taxi. (Id. at ¶ 72). Cheryl was sitting in the taxi and refused to leave. (Id.). Two minutes later, she agreed to get out. (Id. at ¶ 73). At that same time, Hospital "'supervisors were made aware of the situation.'" (Id. at ¶ 74). James was not aware of why she could not leave with her daughter. (Id. at ¶ 75). Security and police personnel informed her that Nicole was subject to a "302 hold." (Id. ¶ 76). At that point, tired, medicated and mildly intoxicated, "stressed to the point of exhaustion," and no longer concerned about Nicole James's immediate safety, Cheryl James told officers that she intended to go home. (Id. at ¶ 77). Hospital security and Wilkes-Barre police informed her that she could not leave, but would not explain why. (Id. at ¶ 78). James insisted that she had a right to leave, and officers forcibly removed her from the taxi, grabbing her about the arms and shoulders. (Id. ¶¶ 79-80). The officers used force to return Cheryl James to the Hospital's emergency room; her daughter witnessed this violent action. (Id. at ¶¶ 81-82).

Officers told Cheryl James that she was the subject of a "302 arrest." (Id. at ¶ 83). Their report alleges they forcibly detained, transported and retained James because she had "'presented to police under the influence of alcohol and prescription medicine . . . subject had an obvious altered level of consciousness." (Id. at ¶ 84). No physician admitted James to the Hospital nor did any physician attended to her during this process. (Id. at ¶ 85). The Wilkes-Barre police officers who brought Cheryl James to the emergency room told attending staff that James had hit her head on a cab and needed evaluation. (Id. at ¶ 86). Pictures of James reveal no bruising on her head, however. (Id. at ¶ 87). Instead, she had severe bruising on her neck, shoulders and arms. (Id.). Medical records related to this incident show no injuries to plaintiff's head, though they do describe other injuries. (Id. at ¶ 88).

After dragging James into the Hospital, Wilkes-Barre police officers and Hospital Security bound her to a gurney that had been prepared by Hospital personnel. (Id. at ¶ 89). Cheryl James demanded her release. (Id. at ¶ 90). Instead, Hospital medical staff, acting either at the direction of the Wilkes-Barre Police or Hospital security, treated plaintiff. (Id. at ¶ 91). Medical staff drew blood forcibly from Cheryl James and injected her with sedatives. (Id. at ¶ 92). During this entire incident, Cheryl James protested, demanding her release and begging staff not to draw her blood or give her a sedative. (Id. at ¶ 93). Staff drew blood and sedated James while the officers present laughed at her plight. (Id. at ¶ 94).

Plaintiffs allege that Hospital medical personnel knew by 1:38 a.m. that Cheryl James "may not have belonged strapped to a gurney in the emergency room. (Id. at ¶ 95). Staff nevertheless continued this restraint. (Id.). They also ignored this assessment in sedating James. (Id.). Hospital records reveal that the only symptoms James displayed were anger at the treatment she had received and "a smell of alcohol" about her. (Id. at ¶ 96). According to blood samples, James's blood alcohol content ("BAC") at the time of her restraint was 0.073. (Id.). Pennsylvania law requires a BAC of 0.08 before a person is considered impaired for driving. (Id. at ¶ 97). The medical records also indicate that James was not a danger to herself or others. (Id. ¶ 96). Hospital medical records indicate that Cheryl James was restrained because she removed her clothes and attempt to run out of the building without them. (Id. at ¶ 98). Plaintiff alleges that those records are in error and contradictory, however. (Id.). A notation a minute after these allegations of an attempt at a naked escape indicate that plaintiff was still in her street clothing, and the hospital then compelled Cheryl James to remove her clothes. (Id.).

Cheryl James remained in restraints, forced to use a bedpan to relieve herself, for more than four hours before staff removed the restraints. (Id. at ¶ 99). No doctor saw her until 5:00 p.m. on September 29, 2009. (Id. at ¶ 100). Within two hours of this doctor's examination, Cheryl James underwent a psychiatric examination. (Id. at ¶ 101). That examination determined her to be in stable condition, and at 9:00 p.m. on September 29, 2009 the hospital released her into the care of her husband, Warren James. (Id.).

During this period, the phone at the James residence had been ringing "incessantly." (Id. at ¶ 102). The calls came from the Luzerne County Children and Youth Services Department. (Id.). Those repeated calls eventually woke Warren James up, and he immediately answered the phone. (Id. at ¶ 103). The callers demanded that Warren immediately sign a release that committed his daughter Nicole to a psychiatric counseling center. (Id. at ¶ 104). The callers threatened Warren James with loss of custody if he did not agree to sign. (Id.). Stressed by the situation and fearing the loss of his daughter, Warren James faxed his signature to representatives of Luzerne County Children and Youth Services. (Id. at ¶ 105). Weakened by his heart condition, the stress of the situation, and lack of sleep, Warren James collapsed back onto his bed. (Id. at ¶ 106).

When James awoke later in the day he called General Hospital to learn the location of his wife Cheryl. (Id. at ¶ 107). At first, the Hospital would not provide Warren James with any information. (Id. at ¶ 108). Agitated, James threatened to file a missing person's report if the Hospital did not provide him with basic information, such as whether or not his wife was at the hospital, and if she was safe. (Id. at ¶ 109). The Hospital representative hesitated for a moment before informing Warren James that his wife was "here and she's safe." (Id. at ¶ 110). The representative then hung up. (Id.). He did not hear from his wife until 8:30 p.m. that evening. (Id. at ¶ 111).

In the meantime, Warren James met with representatives of Children and Youth Services at his home. (Id. ¶ 112). The department decided to close the case against the James family after a review of the residence reveal nothing to cause concern. (Id. at ¶ 113).

On July 12, 2010, plaintiffs filed a complaint in the Court of Common Pleas of Luzerne County, Pennsylvania. The complaint contains nineteen counts. Most of those counts are state-law tort claims related to Cheryl James alleged false arrest and imprisonment, as well as negligence claims against various parties.

Defendants removed the case to federal court on July 23, 2010. They then filed motions to dismiss. The parties briefed the issues. The court referred the motions to the magistrate judge, who issued two reports and recommendations. Various parties then filed objections to these reports and recommendations, bringing the case to its present posture.*fn1 Jurisdiction Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983. The court therefore has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over plaintiffs' state-law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.

Defendants have filed motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged." Id.

Discussion

Various parties have filed objections to the reports and recommendations. The court will address each in turn.

A. First Report and Recommendation

The magistrate judge issued two reports and recommendations. The court will address the objections to each separately. Magistrate Judge Methvin's first report and recommendation addresses the motions to dismiss filed by Wright Township, the Wright Township Police Department and Officer Michael Marshall (Doc. 63), the City of Wilkes-Barre and the Wilkes-Barre Police Department (Doc. 67), Officer Brian Stout (Doc. 90) and Officer Dennis Monk (Doc. 97).*fn2

Plaintiffs raise several objections to the first report and recommendation. The court will address each in turn.*fn3

i. False Arrest/Imprisonment Claim

Plaintiffs object to the magistrate judge's finding that Plaintiff Cheryl James's false arrest and false imprisonment claim should be dismissed. The magistrate judge found that plaintiffs had not alleged that Cheryl James had been seized, but had simply been "persuaded" to go to the hospital with her daughter. She therefore was not the subject of a false arrest. Likewise, Cheryl James has failed to allege that she was not free to leave while riding in the ambulance to the ...


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