LIZETTE VARGAS, et al.
CITY OF PHILADELPHIA, et al.
Before me is a motion for summary judgment by defendants the City of Philadelphia and police officers Keith White and Matthew Blaszczyk on the claims made by plaintiff Lizette Vargas, individually and as administratrix of the estate of her deceased daughter Tabitha Gonzalez. Gonzalez suffered from an asthma attack on the night of August 19, 2009 which caused her severe anoxic brain injury. She was pronounced brain dead and taken off of life support six days later on August 26, 2009. Plaintiff alleges that the two defendant police officers prevented her and others from transporting her daughter to nearby Temple University Hospital for emergency care while she was suffering from the asthma attack, thereby fatally delaying her access to crucial medical treatment. Plaintiff also alleges that the City of Philadelphia’s policy, custom, and failure to train its police officers led to violations of plaintiff and decedent’s constitutional rights. For the following reasons, I will grant defendants’ motion for summary judgment.
I. Night of August 19, 2009
On the night of August 19, 2009, 15-year old Gonzalez began suffering from an asthma attack while at her home in North Philadelphia. Dkt. No. 12-4 at 86:16-19. Her mother plaintiff Lizette Vargas later found her lying on the ground on the sidewalk in front of the house. Dkt. No. 12-4 at 88:22-89:10. Erik Franklin, the boyfriend of Maritza Rojas, and two neighbors lifted Gonzalez into the backseat of a car belonging to Julia Diaz, another cousin of Gonzalez. Dkt. No. 12-4 at 94:9-95:20. During this time, plaintiff and Diaz both dialed 911 and placed five separate calls between 12:08 a.m. and 12:14 a.m. Dkt. No. 12-18 at 16:12-19. Police Communications Center dispatched defendant police officers Keith White and Matthew Blaszczyk, both in the same car, in response to reports of “a person screaming” on the call made at 12:10 a.m. and 40 seconds. Dkt. No. 12-18 at 25:8-20. Neither officer was made aware that the call was regarding a medical emergency. Dkt. No. 12-7 at 12:17-19, 13:5-14; Dkt. No. 11-5 at 20:14-23. While en route at 12:13 a.m. and 42 seconds, the officers ran separate tags of two different vehicles. Dkt. No. 11-5 at 40:19-41:10; 43:5-10. The officers arrived on the scene at 12:13 a.m. and 56 seconds. Id. at 45:15-17. By the time of their arrival, it is undisputed that Gonzalez was unconscious and that she remained unconscious throughout the time that the officers were on location that night. Dkt. No. 11-6 at 42:5-10.
The events immediately following officers White and Blaszczyk’s arrival are in dispute. Plaintiff testified that Franklin was in Diaz’s backseat with Gonzalez while plaintiff was in the passenger front seat and Diaz, as the driver, had pulled the car “halfway” out of its parking spot when officers White and Blaszczyk parked their car parallel to the car that plaintiff was in. Dkt. No. 11-4 at 95:23-97:10; Ex. D-1. According to plaintiff, the officers’ parked car was positioned so that its back door blocked her from opening her passenger-side door. Dkt. No 11-4 at 98:4-8; Ex. D-1. She claims that she then banged on her door to “let [the officer] know that [she] can’t open up the door” while Diaz rolled down her window to tell the officer that they had Gonzalez in the car and “got to go.” Dkt. No. 11-4 at 98:4-14. Plaintiff testified that the first officer to exit the patrol car walked in front of Diaz’s car to the driver’s side and while walking, told the occupants to “get the fuck out of the car, turn off the engine now” as Diaz was trying to explain to him their medical emergency. Id. at 98:14-99:5; 103:8-17. Diaz turned off the engine and, along with the rest of the passengers, exited the car, leaving Gonzalez propped against the car backseat. Id. at 103:18-105:12; Dkt. No. 12-6 at 31:19-33:2. At this point, plaintiff claims that the police officer pulled open the backseat door that Gonzalez’s legs were leaning against, causing half of her body from the torso downwards to tumble outside onto the ground. Dkt. No. 11-4 at 103:21-104:3; Dkt. No. 12-6 at 33:3-34:7. According to plaintiff, she attempted to move towards her daughter but was prevented from doing so by the officer who “blocked” her. Dkt. No. 11-4 at 108:2-109:13.
In contrast to plaintiff’s version of events, officers White and Blaszczyk testified that they were not blocking any cars when they pulled onto the street of the Vargas residence. Dkt. No. 12-9 at 7:16-18; Dkt. No. 12-7 at 22:10-14. They also claim that Gonzalez was already on the sidewalk upon their arrival: Officer Blaszczyk testified that he saw “a female laying on the sidewalk” as he exited his vehicle and similarly Officer White claimed to have observed that there were “two Hispanic males that were over top of a[ ] Hispanic female who was on the ground.” Dkt. No. 12-9 at 7:23-8:1; Dkt. No. 11-6 at 20:15-17. The officers assert that along with the two Hispanic males they attempted to move Gonzalez back into the car and “got her halfway into the car and she just didn’t fit into the back door.” Dkt. No. 11-6 at 21:11-18; Dkt. No. 12-9 at 9:18-22. Officer White recalls that as they were attempting to move Gonzalez into the car he heard the siren of an ambulance coming and “it was very clear [to him] that [they] were not going to get her [Gonzalez] into the back of the car and [so he] recommended that [they] wait for the ambulance to arrive.” Dkt. No. 11-6 at 21:20-24. Officer White further explained that “as the ambulance was pulling up, the two females were screaming at [them] that [they] don’t want to fucking help, to get the fuck away from her [Gonzalez].” Id. at 24:13-15. Officer White claims he stepped away from them and approached the ambulance as it arrived on location. Id. at 24:15-17. Officer also testified that during the time he and officer White were attempting to help transport Gonzalez he was told “just get the fuck out of here. Get the fuck off of her [Gonzalez]. Get the fuck out of here. We don’t want your help.” Dkt. No. 12-9 at 9:8-11. Both officers assert that they did not prevent anyone from taking Gonzalez to the hospital. Dkt. No. 11-6 at 49:8-13; see Dkt. No. 12-9 at 19:12-23. Both officers acknowledge that at no time that night did they have a reasonable suspicion that there was any criminal activity at the location. Dkt. No. 11-6 at 35:14-22; Dkt. No. 12-9 at 15:22-16:2.
Franklin testified that the officers were on scene for less than a minute before the first group of EMTs arrived: “Right when the cop came and opened the door, not even a minute later, that’s when the rescue and the fire department and everything came.” Dkt. No. 11-2 at 34:19-35:1. Franklin’s estimation is in line with EMT records which show that the first group of responders arrived on scene at 12:14 a.m. and 37 seconds, less than one minute after White and Blaszczyk’s arrival. Dkt. No. 11-9 at 22:3-5. The first group of responders arriving in a fire truck recollected that they saw a large crowd of people at the scene who were “screaming, hollering, fighting” “amongst each other” and also that Gonzalez was “half-in” the car and was unresponsive with no vital signs. Dkt. No.11-10 at 9:22-10:6; Dkt. No. 11-11 at 16:2-17:13. The first responders pulled Gonzalez out of the car and onto the sidewalk, provided basic life support and CPR to her until the medic unit came in an ambulance, assisted her onto a stretcher, loaded her into the ambulance and continued providing CPR to her on the way to Temple University Hospital. Dkt. No. 11-11 at 16:2-9. Gonzalez arrived at the hospital at 12:28 a.m. and 31 seconds, approximately twenty minutes after plaintiff’s first call to 911. Dkt. No. 11-9 at 28:10-11. She had suffered a severe anoxic brain injury by the time of her arrival, was pronounced brain dead, taken off of life support and died two weeks later on August 26, 2009. Dkt. No. 12-3 at ¶¶ 22-24.
Plaintiff claims defendants violated both her and the decedent Gonzalez’s constitutional rights to be free from unlawful seizure and physical restraint. Id. ¶¶ 25, 28. Additionally, plaintiff claims a violation of her fundamental liberty interest in the care, custody and management of her child, and the decedent’s right to her well-being, life and personal security. Id. ¶¶ 25, 28. Finally, plaintiff alleges that the City of Philadelphia’s failure to train its police officers or, in the alternative, its policy and customs in allowing its police officers to disregard family and/or parental rights and individuals’ right to seek emergency medical treatment, constitute an injury for which it is responsible under 42 U.S.C. § 1983. Id. ¶¶ 33-34.
II. The City of Philadelphia Police Department Policies and Practices
The City of Philadelphia policies that are relevant to plaintiff’s claims are found in the Philadelphia Police Department Directive 63 of March 3, 1996 on “Hospital Cases” and an appendix, Memorandum 99-2 of January 29, 1999 titled “The Duty of Police Officers to Identify and Facilitate Medical Care for Persons Found in Semi-Conscious or Unconscious Condition as a Result of Epilepsy, Diabetes or Other Illness.” Dkt. Nos. 12-23, 12-24. Memorandum 99-2 states that “persons found in semi-conscious or unconscious condition or exhibiting symptoms due to epileptic or diabetic illness shall immediately be transported to a hospital for treatment by a physician.” Memorandum 99-2 is based upon a Pennsylvania General Assembly Act that imposes obligations on police officers prior to charging individuals with a crime.
According to Sergeant Paul Starrs of the Research and Planning Unit for the Philadelphia Police Department, City police are trained in the police academy to recognize medical emergencies including emergencies such as an asthma attack. Dkt. No. 11-7 at 14:19-15:20. Starrs testified that upon finding an unconscious individual it is at the discretion of the police officer whether to transport the individual to the hospital or to wait for the arrival of EMT. Id. at 23:6-14. There is no City policy that prohibits police officers from transporting the suffering individual to the hospital, but police officers driving and seated in the front of the car would otherwise leave the individual unattended and officers are according to Starr “better off” “waiting for the medics and that’s why [officers are] trained to wait for the medics because they have the equipment and they have the personnel to ride in the back [with the individual].” Id. at 23:18-24:3. Starrs is “not aware of any policies or procedures” or “training” that pertains specifically to “parents’ right to the care, custody, control and medical treatment of their children.” Id. at 28:15-23.
Officer White claims that he is familiar with Directive 63 and understood it as requiring him to render first aid to individuals where “appropriate” at the scene. Dkt. No. 11-6 at 39:7-12. Both officers White and Blaszczyk are trained in first response and CPR. Id. at 56:13-18. Officer White testified that he was given specific instructions in his first responder and CPR trainings that individuals should be transported to the hospital when suffering from an asthma attack. Id. at 57:14-19. He claims that he did not attempt to transport Gonzalez in the police vehicle because generally, police vehicles “are smaller in the back” than the vehicle which he was already having trouble moving Gonzalez into. Id. at 46:16-49:5. He did not attempt to render first aid to Gonzalez. Id. at 39:14-16. He alleges that he was focused on “trying to put [Gonzalez] inside a vehicle . . . and then an ambulance was heard and seen coming to the location within a minute to two minutes. [The first responders] are better trained for the situation.” Id. at 47:11-18.
STANDARD OF REVIEW
Summary judgment will be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex, 477 U.S. at 322–23. If the movant sustains its burden, the nonmovant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. A fact is material if it might affect the outcome of the case under governing law. Id.
To establish that a fact cannot be or is genuinely disputed, a party must:
(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The adverse party must raise more than a mere scintilla of evidence in its favor in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). The existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the movant. Ely v. Hall’s Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted). Summary judgment will be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
I. Counts I and II—Violations of Constitutional Rights
Plaintiff alleges that both she and decedent were unlawfully seized in violation of their Fourth Amendment rights. Dkt. No. 6 at ¶¶ 26, 29. For the reasons below, I do not find that either plaintiff or decedent was seized.
A Fourth Amendment seizure occurs only where the government terminates the freedom of an individual through means intentionally applied. Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989). “A person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). The Mendenhall test for the existence of a ‘show of authority’ is an objective one and requires that I consider “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628 (1991). Shows of authority that may constitute a seizure to a reasonable person include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Crandell, 554 F.3d 79, 85 (3d Cir. 2009), citing Mendenhall, 446 U.S. at 554–55 (internal citations omitted).
Additionally, submission to a ‘show of authority’ is required for a seizure to have been effected. Mendenhall, 446 U.S. at 554–55; see also United States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009) (“The simple act of an assertion of authority by an officer is insufficient to transform an encounter into a seizure without actual submission on the part of the person allegedly seized.”). Determining whether an encounter constitutes a seizure requires consideration of the totality of the circumstances. Florida v. Bostick, 501 U.S. 429, 437 (1991). As Mendenhall observed, a ‘seizure’ occurs only when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554–55. Where plaintiff could have “reasonably understood that she was free to leave” a seizure does not exist. Gause v. City of Phila., No. 00-1052, 2001 WL 1251215, at *2 (E.D. Pa. Sept. 27, 2001).
Plaintiff claims that she was seized when the first police officer “blocked” and prevented her from moving towards Gonzalez and that plaintiff submitted to the officer’s show of authority. Dkt. No. 12 at 27-30. Plaintiff describes her encounter: “What I mean by blocking, he didn’t put his hands on me. He just blocked like, you know, you can’t go over there, you got to move back and ...