Gerald Bush v. Mercy Hospital, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FUENTES, SHWARTZ and ROTH, Circuit Judges. Total Pages: 5. Appellant's motion to supplement the record is denied.

Case: 14-4154

Document: 003111914849

Page: 1

PS3-055

Date Filed: 03/26/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4154
___________
GERALD BUSH,
Appellant
v.

MERCY HOSPITAL; (CTT) COMMUNITY TREATMENT TEAM; STEVEN ESIEN,
Psychiatrist; NATHAN ALEN, APT, Therapist
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civil Action No. 14-cv-05305)
District Judge: Honorable C. Darnell Jones, II
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 17, 2015
Before: FUENTES, SHWARTZ and ROTH, Circuit Judges
(Opinion filed: March 26, 2015)
___________
OPINION*
___________
PER CURIAM
Gerald Bush, proceeding pro se, appeals an order of the United States District
Court for the Eastern District of Pennsylvania dismissing his civil rights action against
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.

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Mercy Hospital, Community Treatment Team, Psychiatrist Steven Esien, and Therapist
Nathan Alen. For the reasons that follow, we will affirm.
Gerald Bush (“Gerald”) alleged in his complaint that doctors at Mercy Hospital
knew that his brother, Gregory Bush (“Gregory”), was dangerous but would not commit
him to the hospital. Gerald averred that Mercy Hospital and Community Treatment
Team wrongfully discharged Gregory and that Gregory then set fire to Gerald’s home.
Gerald alleged that he incurred $22,856.00 in property damage and that he needed to seek
treatment for depression. He sought damages for violations of his due process rights.
The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
for failure to state a claim for relief because the complaint did not establish that the
defendants were state actors for purposes of 42 U.S.C. § 1983. The District Court also
dismissed any state law claims because Gerald had not alleged facts supporting diversity
jurisdiction. The District Court dismissed the complaint without prejudice to Gerald’s
filing an amended complaint in District Court or a complaint in state court.
Gerald filed a response to the District Court’s ruling, which may be construed as
an amended complaint. Gerald stated that Gregory suffers from a mental disorder, that he
had to have Gregory committed several times, and that the defendants had custody of
Gregory pursuant to a court order. He alleged that Gregory left the defendants’ facilities
or was improperly released, and that the defendants would not recommit him. Gerald
also stated that Mercy Hospital and Community Treatment Center are under contract with
the Commonwealth of Pennsylvania to provide medical services to indigent persons, and
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that these defendants, and the doctors who provided care, are thus state actors for
purposes of § 1983. Gerald claimed that the defendants violated state law and their duty
to protect him from harm, and sought damages for the harm caused by Gregory’s setting
fire to his home.
The District Court assumed that the defendants are state actors for purposes of
§ 1983, but again concluded that Gerald failed to state a claim for relief. The District
Court explained that the failure to protect an individual against private violence is not a
substantive due process violation. The District Court recognized the “state-created
danger” and “special relationship” exceptions to this rule, but held that these exceptions
did not apply. The District Court ruled that further amendment of the complaint would
be futile. The District Court dismissed Gerald’s federal claims with prejudice and his
state law claims without prejudice to his refiling the claims in state court. This appeal
followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is
plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
The District Court did not err in holding that Gerald fails to state a claim for a
violation of his substantive due process rights based on the defendants’ alleged failure to
protect him from being harmed by Gregory. As recognized by the District Court,
assuming the defendants are state actors, “a State’s failure to protect an individual against
private violence simply does not constitute a violation of the Due Process Clause.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Serv., et al., 489 U.S. 189, 197 (1989).
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We agree with the District Court that the “special relationship” exception to this
rule does not apply here. Under this exception, a state has a constitutional duty to protect
persons in its custody. Morrow v. Balaski, 719 F.3d 160, 167-68 (3d Cir. 2013) (en
banc). Gerald, however, was never in the defendants’ custody. See DeShaney, 489 U.S.
at 199-201 (state had no duty to protect a child where harm occurred when child was in
his father’s custody); Morrow, 719 F.3d at 167-68 (noting the duty to protect arises from
a limitation the state has imposed on a person’s freedom to act on his own behalf).
We also agree with the District Court that Gerald does not state a constitutional
claim under the “state-created danger” exception, which allows for liability where the
state acts to create or enhance a danger that deprives a person of his right to substantive
due process. Morrow, 719 F.3d at 177. Gerald was required to aver, among other things,
that “a state actor affirmatively used his or her authority in a way that created a danger to
the citizen or that rendered the citizen more vulnerable to danger than had the state not
acted at all.” Id. (citation omitted).
As explained by the District Court, the danger in this case was caused by
Gregory’s mental illness, and the fact that defendants had custody of him for a period of
time did not create or increase the danger to Gerald. See DeShaney, 489 U.S. at 201
(state played no part in creating danger that child faced in the custody of his father where
the state had temporary custody of the child and returned him to his father’s care); Bright
v. Westmoreland Cnty., 443 F.3d 276, 283-84 (3d Cir. 2006) (state did not create danger
by failing to detain a probationer who violated his parole and later shot the victim).
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Gerald asserts on appeal that the defendants created a danger by sending an
“unlicensed person” to administer “dangerous” medication to Gregory as an outpatient
without warning Gerald of the side effects. While Gerald primarily makes this assertion
in support of his claims of negligence, he also appears to contend that it supports the
application of the state-created danger exception. Gerald, however, did not allege in his
original or amended complaint that the defendants caused his harm by providing Gregory
medication, and we find any suggestion in this regard insufficient to state a plausible due
process claim. Finally, to the extent Gerald asserts on appeal that the defendants violated
the Federal Nursing Home Reform Amendments, Gerald did not make such a claim
before the District Court and we will not consider it in the first instance. C.H. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 73 (3d Cir. 2010).
Accordingly, we will affirm the judgment of the District Court.1

Gerald’s motion for leave to file an amended appendix, construed as a motion to supplement the
record, is denied to the extent the exhibits submitted were not filed in District Court. See In re
Capital Cities/ABC Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (1990)
(court of appeals will consider only the record considered in district court).
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