VARGAS v. CITY OF PHILADELPHIA

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 11/18/2013. 11/19/2013 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LIZETTE VARGAS, et al.
v.
CITY OF PHILADELPHIA, et al.

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O’NEILL, J.

CIVIL ACTION
No. 11-2639

November 18, 2013
MEMORANDUM

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.
BACKGROUND
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.1 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.2 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
1

“Call-takers” receive 911 calls from individuals while “dispatchers” are in
communication with the police but not the individual. “Call-takers” and “dispatchers” are not in
communication with each other but access the same information on a computer. ComputerAided Dispatch (CAD) records indicate that at 12:10 a.m. and 40 seconds, the automated
computer system recognized and cross-referenced plaintiff’s call in regards to a medical
emergency and her other call where she was screaming. The computer cross-reference is known
to the call-taker, but it is impossible to ascertain whether the dispatcher was also aware of the
cross-reference and communicated this information to the police officers. Dkt. No. 11-5 at
33:24-36:8. Officer White testified that the information the officers had when responding to the
scene was that there was a person screaming. Dkt. No. 11-6 at 13:9-18.
2
The time of the officers’ arrival is captured and reported to the remote dispatcher
when they push a button on their mobile data terminal (MDT) that is secured to their vehicle; a
“slight” delay between the officers’ actual arrival and the recorded time of their arrival is
possible. Dkt. No. 11-5 at 52:20-53:17; 56:9-14.
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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 officer3 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.4 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.5 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.

3

Plaintiff testified that he was tall and blonde and was the driver of the police
vehicle. Dkt. No. 11-4 at 98:17-19; 101:7-12; 103:4-7.
4
Plaintiff claims she had to climb over the driver’s seat to exit the car since the
officers’ patrol car was parked in a way that block her from opening her passenger side door.
Dkt. No. 11-4 at 104:17-105-1.
5
Franklin claims he witnessed the police officer opening the backseat door. Dkt.
No. 11-2 at 31:17-18.
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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,

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that’s when the rescue and the fire department and everything came.” Dkt. No. 11-2 at 34:1935:1. 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.

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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”6 and an
appendix, Memorandum 99-2 of January 29, 19997 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
6

Directive 63 provides as follows:
I. Policy:
A. Police personnel will consider the assignment of a hospital case an
emergency unless advised otherwise by a medically competent
person. First aid will be rendered and the person transported to the
nearest hospital.
B. Police personnel assigned to radio patrol cars will, whenever
possible, without detriment to the person, handle hospital cases to
ensure availability of emergency patrol wagons for other
assignments.
C. The Philadelphia Police Department will not Dispatch police
officers to the scene of hospital cases when Fire/Rescue responds
except in the following circumstances:
1. When requested by Fire Communications.
2. Hospital cases arising from criminal acts, auto
accidents or any other instances in which a police
investigation/action is required.
II. Procedure
A. Police personnel will transport:
1. Persons suffering from a serious penetrating wound,
e.g., gunshot, stab wound, and similar injuries of the
head, neck, chest, abdomen, and groin to the nearest
accredited trauma center. Transportation of such
cases will not be delayed to await the arrival of Fire
Department paramedics.

Dkt. No. 12-23.
7
Memorandum 99-2 was updated in 2010. Memoranda are “put out momentarily,
for maybe a year” while Directives are memoranda that are current or will continue to be current.
Dkt. No. 11-7 at 12:9-13:12. Memorandum 99-2 was a “permanent” memorandum attached as
an appendix to Directive 63. Id. at 13:9-12.
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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.8
According to Sergeant Paul Starrs9 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 14:1915:20. 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.10 Id. at 23:6-14. There is no City policy that prohibits police officers from transporting

8

Memorandum 99-2 erroneously cites to Pennsylvania General Assembly statute
35 P.S. § 10011. The correct provision § 10012 titled “Law enforcement officers; duty upon
finding unconscious persons” states:
It shall be the duty of all law enforcement officers in this State to
make a diligent effort to determine if any person they may find in a
semi-conscious or unconscious condition is an epileptic or a
diabetic or a person who is suffering from any other type of illness
which would cause semi-consciousness or unconsciousness, before
such person may be charged with a crime. If any law enforcement
officer shall determine that such a person is actually suffering from
an affliction which would cause semi-consciousness or
unconsciousness, it shall be his duty to notify such person’s
physician immediately or to have such person immediately
transported to a physician or to some facility where the services of
a physician are available.
35 Pa. Cons. Stat. § 10012 (2013) (emphasis added).
9
Starrs is responsible for writing Police Department policies, procedures and
recommendations. Dkt. No. at 9:17-22.
10
Starrs testified that:
[Memorandum 99-2] doesn’t necessarily say that [officers coming
upon an unconscious individual are required to transport her to the
hospital]. It says, will render first aid, and that decision may be
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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. 11 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
based on what’s going on on the scene, what the officers have
available to them to transport, and we’re always taught at the
Academy that . . . the medics, the paramedics have more
equipment available to render first aid.
Dkt. No 11-7 at 20:18-21:2; see Dkt. No 11-7 at 20:10-23:2.
11
Officer White testified that “never had a chance” to check whether Gonzalez was
breathing because while attempting to help move Gonzalez into the vehicle, an “elderly female
had grabbed [him] from behind and was screaming at [him] to leave” Gonzalez alone. Dkt. No.
11-6 at 42:11-21.
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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

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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.
DISCUSSION
I.

Counts I and II—Violations of Constitutional Rights
A.

Seizure

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).

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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 that’s when I started screaming and yelling . . . .” Dkt. No. 11-4 at 108:2-8.
She further elaborates:
What I mean by blocking was that he put his arms like you can’t
go that way; even though I tried to move that way, he wouldn’t let
me go. Not block me like he shoved me or anything like that, he
didn’t . . . . What I am saying is, here I am and I’m trying to walk
and here he is telling me no and like—just on me like. You can’t
go back there, ma’am. You have to calm down. You can’t go back
there.

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Id. at 109:4-13. When asked whether the officers said anything else to her, she said: “Besides
that they didn’t want me to get next to her and wait for the ambulance that was on its way. I
moved away from them after that.” Id. at 118:10-14.
Plaintiff admits that officer White did not physically touch her during the encounter
where she claims she was seized. His language and words to her specifying that she should
“calm down” and not “go back there” do not evidence a seizure. Id. at 109:4-13. Plaintiff’s
testimony with respect to her subsequent behavior where she “moved away” from the officers
suggests that she was free to leave the area and was only precluded from moving into the area
where Gonzalez lay.
In Gause, the plaintiff was physically struck by an officer and knocked to the ground
while observing her son being arrested by police. Gause, 2001 WL 1251215, at *2. The
plaintiff’s son testified that while the police were arresting him, they told his mother to leave the
area. Id. At no time did the police attempt to arrest the plaintiff. Id. The District Court
concluded that “[b]ecause a reasonable person in [p]laintiff’s position would have reasonably
understood that she was free to leave, a ‘seizure’ did not occur.” Id. In Gause, the plaintiff was
free to move anywhere with the exception of the area where her son was being arrested.
Similarly here, plaintiff was free to move anywhere except into the area where Gonzalez lay. A
reasonable person would have understood that she was free to leave the area and plaintiff
apparently did because she admits that she “moved away from them [officers] after that.” Dkt.
No. 11-4 at 118:10-14. Therefore, I find that there was no seizure of plaintiff.
Plaintiff also claims that Gonzalez was seized by the officers. Gonzalez was unconscious
by the time of the officers’ arrival. Dkt. No. 11-6 at 42:1-10; Dkt No. 12-5 at 14:7-17:17; see
Dkt. No. 11-4 at 92: 4-6. At issue is whether an individual who is unconscious is capable of

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being “seized” for the purposes of the Fourth Amendment. While the parties have not directed
the Court to any Court of Appeals authority relevant to this question, other circuits have ruled
that an unconscious individual cannot be seized.
The Court of Appeals for the Seventh Circuit has found there to be no seizure when a
plaintiff’s failure to flee in response to a show of authority was a result of his being asleep or
unconscious. Leaf v. Shelnutt, 400 F.3d 1070, 1090 (7th Cir. 2005). In Leaf, two police officers
entered the plaintiff’s house and conducted a search lasting approximately three minutes while
the plaintiff was lying on a bed with his eyes closed. Id. at 1075. In examining whether the
plaintiff was seized, the Court emphasized that the “seizure must be accomplished ‘through
means intentionally applied’ [and] it is not the case that a seizure occurs every time there is a
‘governmentally desired termination of an individual’s freedom of movement.’” Id. at 1090
citing Brower, 489 U.S. at 597 (emphases in original). The Court further observed that “[w]here
police seek to stop someone, but the subject is ‘in fact stopped . . . by a different means’ no
seizure occurs.” Id., citing Brower, 489 U.S. at 597. The Court concluded that if the plaintiff’s
“failure to flee can be attributed to the fact that he was asleep or otherwise unconscious,” “it
cannot be said that the officers terminated his freedom of movement through their show of
authority.” Id.
The Court of Appeals for the Sixth Circuit has adopted a similar position. Peete v.
Metro. Gov’t of Nashville & Davidson Cnty., 486 F.3d 217, 217 (6th Cir. 2007). In Peete, the
Court emphasized that a “seizure” connotes “an intentional interference with a person’s liberty
by physical force or a show of authority that would cause a reasonable person consciously to
submit.” Id. at 220. The Court held that because the plaintiff was in an unconscious epileptic
state at the time of his encounter with the defendant emergency medical personnel he “could not

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perceive any restraint on his liberty or otherwise feel compelled to submit to a governmental
show of force” and therefore was not seized within the meaning of the Fourth Amendment. 12 Id.
at 217. In so concluding, the Court reiterated that “the question whether a seizure has occurred
within the meaning of the Fourth Amendment is an objective one.” Id. at 220.
Defendants argue that there was no seizure of Gonzalez within the meaning of the Fourth
Amendment because she could not have “consciously” submitted to any show of authority. See
Dkt. No. 11 at 11. Here, defendants misconstrue the word “consciously” as used by the Sixth
Circuit in Peete to suggest that an individual necessarily needs to perceive or be aware of a show
of authority in order to submit. See id. This is not the case. As plaintiff correctly points out, the
Mendenhall test for the existence of a show of authority is an objective one that does not focus
on what an individual perceives. Hodari D., 499 U.S. at 628. The decisions in Leaf and Peete
apply the objective standard because where there is no individual submission to or no submission
because of a show of authority the required causality between the two prongs of the Mendenhall
test is not established. See James v. City of Wilkes-Barre, 700 F.3d 675, 681–82 (3d Cir. 2012),

12

Contrary to plaintiff’s argument, the fact that the responding personnel were
emergency medical technicians and not police officers in Peete as they are in the case before me,
is not a key distinction between Peete and the instant case. See Dkt. No. 12 at 24. In a
subsequent case, the Sixth Circuit held that “we will assume without deciding that Peete’s
holding could extend to defendant police officers.” McKenna v. Edgell, 617 F.3d 432, 439 (6th
Cir. 2010), cert. denied, 179 L. Ed. 2d 654 (2011). In Browell v. Davidson, 595 F.Supp.2d 907,
916 (N.D. Ind. 2009), a case deciding whether a hostage passenger in a fleeing car was seized,
the Court held that:
for purposes of the Fourth Amendment analysis it is important to
note that she was unconscious. It is undisputed [that] [plaintiff]
does not recall any of the events involving the police leading up to
her transport to the hospital. [Plaintiff] was not even aware of the
police being present, and she was surely not aware of her inability
to leave. Thus, [plaintiff] could not perceive any restraint on her
liberty or otherwise feel compelled to submit to a governmental
show of force.
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citing Kernats v. O’Sullivan, 35 F.3d 1171, 1180 (7th Cir. 1994) (“[a] seizure typically involves
an almost complete restriction of movement—either a laying of hands or a close connection
(both temporally and spatially) between the show of authority and the compliance.”).
Because the plaintiff in Peete was unconscious, he could not establish that his submission
was in response to a show of authority. He therefore could not have been seized. Similarly, in
his slumbering or unconscious state the plaintiff in Leaf could not have attempted to flee;
because the restriction on his movement was caused by a prior state; the officers could not have
been said to have terminated his freedom through their show of authority. In both Peete and Leaf
no seizure was found because the plaintiff’s unconscious state prevented him from fulfilling the
causality required of a seizure, not because the plaintiff’s unconscious state prevented him from
perceiving the officer’s show of authority. While the consequence is that an unconscious
individual cannot be seized under the Fourth Amendment whether the correct objective test or
erroneous ‘subjective’ test is used, under other circumstances the outcome will differ.
In this case Gonzalez was “unresponsive” to CPR and “not breathing” even prior to the
officers’ arrival. Dkt. No 12-5 at 14:7-17:17. Since she continued to be unconscious and
nonresponsive throughout the time the officers were on scene, I find that Gonzalez could not
have been seized.
Plaintiff then argues that because she was asserting her parental right to the care, custody,
and control of her daughter at the time of her daughter’s alleged seizure, she as a “proxy”
submitted Gonzalez to the authority of the defendant police officers. Dkt. No. 12 at 24. I find
this argument unavailing. There is no caselaw suggesting that submission to a show of authority
is anything but individual or can be satisfied by proxy. While plaintiff attempts to invoke the
doctrine of third party standing to assert a violation of her daughter’s right, that doctrine has no

-15-

applicability to the question of whether her daughter’s right was violated to begin with.
Unfortunately, here plaintiff confuses the requirement of having suffered a constitutional
violation with the general doctrine of standing which allows a third party under certain
circumstances to assert the legal rights of another. See Kowalski v. Tesmer, 543 U.S. 125, 130
(2004).
I find that because Gonzalez in her unconscious state was incapable of submitting to any
show of authority she was not seized. I therefore will not discuss whether plaintiff has standing
to assert Gonzalez’s right to be free of an unlawful seizure.
B.

Liberty Interest

Plaintiff asserts that decedent’s liberty interest was violated by the defendant officers
precluding her family from transporting her to the hospital for emergency care. Dkt. No. 12 at
32-34. Plaintiff also claims that the officers violated her fundamental liberty interest in the care,
custody and management of her child when they prevented her from transporting her daughter to
the hospital. Id. at 30-32. Finally, plaintiff asserts that both her freedom and the decedent’s
freedom from physical restraint were violated. Dkt. No. 6 at ¶¶ 26, 29. Plaintiff has not
elaborated on the specifics of the last allegation, but “freedom from bodily restraint and
punishment is within the liberty interest.” Ingraham v. Wright, 430 U.S. 651, 652 (1977). All
claims here are therefore analyzed under the Due Process Clause of the Fourteenth Amendment
that protects against the arbitrary actions of government, whether in a denial of fundamental
procedural fairness or in the exercise of power without reasonable justification in the service of a
legitimate governmental objective. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
To establish a substantive due process claim under 42 U.S.C. § 1983 a plaintiff must
prove that: 1) the particular interest at issue is protected by the Fourteenth Amendment, and; 2)

-16-

the government’s deprivation of that protected interest “shocks” the conscience. Gottlieb ex rel.
Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 171–72 (3d Cir. 2001). Plaintiff’s
interests here are protected by the Fourteenth Amendment, but because I find that the officers’
conduct does not rise to the level of action that ‘shocks the conscience’ I will grant summary
judgment in their favor.
The Supreme Court in Lewis noted that “conduct intended to injure in some way
unjustifiable by any government interest is the sort of official action most likely to rise to the
conscience-shocking level.” Lewis, 523 U.S. at 846, 849. At the same time, “[l]iability for
negligently inflicted harm is categorically beneath the threshold of constitutional due process.”
Id. at 848. Applying Lewis, the Court of Appeals has held that “more culpability is required to
shock the conscience to the extent that state actors are required to act promptly and under
pressure.” Schieber v. City of Phila., 320 F.3d 409, 419 (3d Cir. 2003). In situations such as a
high-speed chase demanding an “instant judgment” a heightened level of culpability amounting
to an “intent to harm” is required before such behavior can be said to shock the conscience.
Lewis, 523 U.S. at 853–54. Other situations may not demand an instant judgment but
nonetheless necessitate the state actor to operate under time pressure. In such situations the
culpability required needs to “reach a level of gross negligence or arbitrariness that indeed
‘shocks the conscience.’” Miller v. City of Phila., 174 F. 3d 368, 375–76 (3d Cir. 1999). For
liability to attach in these circumstances a plaintiff must show that “defendants consciously
disregarded, not just a substantial risk, but a great risk that serious harm would result.” Ziccardi
v. City of Phila., 288 F.3d 57, 66 (3d Cir. 2002).
In the present case, the officers were acting under time pressure. They had at most three
to four minutes according to plaintiff, if not less than one minute according to EMT records and

-17-

plaintiff’s witness, to make a decision regarding Gonzalez’s care in the interim period prior to
the arrival of emergency personnel. Dkt. No. 11-4 at 115:4-19; Dkt. 11-5 at 35:2-4; Dkt. No. 119 at 22:3-4. In addition to Gonzalez’s medical emergency, the officers also had to concurrently
contain a growing crowd of onlookers on the scene who had crossed over from the nearby park
in response to plaintiff’s screams and neighbors who wanted to “find out what was going on.”13
Dkt. No. 11-4 at 111:18-112:4. The facts are disputed whether police officers Blaszczyk and
White blocked plaintiff from accessing her daughter and transporting her to the hospital. But
construing the facts in a light most favorable to the plaintiff, even if the officers were found to
have done so, I find that they did not intend to injure Gonzalez, and at no time consciously
disregarded a great risk of serious harm to her.
At the time that the officers pulled their car alongside Diaz’s car and allegedly blocked
the passengers inside from leaving the curb, they were responding to a report of a “person
screaming” and there is no evidence that they were aware of a medical emergency. See supra
n.1. Later, if an officer was blocking plaintiff from accessing her daughter, plaintiff admits that
it was likely because she was in a hysterical state.14 Dkt. No. 11-4 at 108:9-16. Another

Plaintiff said that the other officer was “trying to get people to move away
because it was a big crowd” and that “[a] lot of people from the park crossed over. Probably like
ten, 15 people.” Dkt. No. 11-4 at 111:18-112:4. Similarly, Robert Green, a firefighter and EMT
who arrived on scene after the officers, testified that he wrote in his narrative report that night
that there was “resistance from onlookers at the scene” and that it was a “growing volatile
situation at the scene” although he had not personally felt threatened that night. Dkt. No. 12-10
at 6:15-17, 15:6-22, 16:9-18. Another firefighter/EMT, Noel Bermudez testified that there was a
“crowd of people” at the scene and that a police officer was “trying to control the scene.” Dkt.
No. 12-12 at 7:22-8:4.
14
Plaintiff speculates that her behavior and physical disruption at the scene were the
cause of the officer’s response. She states:
13

I guess because I was jumping up and down and I was screaming
and yelling and I was trying to get to my daughter [that the police]
had me on the other side” and “maybe I was jumping and moving
-18-

bystander who was not in the same hysterical state as plaintiff was able to move into the area
where Gonzalez lay and fix her clothing.15 Officer White recognized that Gonzalez was having a
medical emergency and needed immediate transportation to the hospital. Dkt. No. 11-6 at 38:3,
39:15, 40:6-7. During this period of time, the officers chose to wait for the first responders
rather than allow Gonzalez to be transported in the back of a car. Their decision to wait for the
first responders is reasonable in light of their belief that emergency medical personnel were
better positioned to assist Gonzalez. Dkt. No. 11-6 at 17:11-15. The officers’ decision to wait
was mirrored by the first responders who, arriving shortly after, also decided against assisting
plaintiff in transporting her daughter to the hospital “because the medic unit was around the
corner and she would be getting . . . professional care in an ambulance” that she presumably
would not in the back of Diaz’s car. Dkt. No. 11-11 at 38:5-23.
Viewed in light of the circumstances prevailing during the incident, I find that plaintiff
has not shown that the officers’ actions rise to a level that would ‘shock the conscience.’ I find
that the officers’ decision in light of the exigent circumstances did not suggest a conscious
disregard of a great risk of serious harm to Gonzalez. I will therefore grant summary judgment
in favor of defendants with respect to plaintiff’s claim that their actions violated her substantive
due process rights.

around and that’s why he [officer] was holding me back from
going that way [towards Gonzalez].
Dkt. No. 11-4 at 108: 9-16.
15
Rojas testified that her boyfriend Franklin, despite also being told by one or more
of the officers to refrain from “going over to [Gonzalez]” and to “not touch [Gonzalez]” ignored
the warning and was able to go to where Gonzalez lay and “fixed her up” so that her
undergarment would not be exposed while she was lying on the sidewalk. Dkt. No. 11-3 at 29:416.
-19-

Plaintiff’s frustration with the officers appears to be that they did not proactively assist
her in transporting Gonzalez to the hospital or affirmatively ‘help’ her in the manner that she
wanted.16 However, the Supreme Court has explicitly held that the Due Process Clause confers
“no affirmative right to governmental aid, even where such aid may be necessary to secure life,
liberty or property interests of which the government itself may not deprive the individual.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). I find that the
officers’ lack of an affirmative response to Gonzalez’s emergency does not violate plaintiff’s
rights under the Due Process Clause.
1.

Special Relationship Exception

Plaintiff next argues that in the alternative, a ‘special relationship’ existed to create an
affirmative obligation on the part of defendant officers to assist both her and decedent. Dkt. No.
12 at 34-36.
While the Due Process Clause generally imposes no affirmative duty on the state to
protect an individual, a ‘special relationship’ exception exists where a state holds an individual in
custody under circumstances such as incarceration, institutionalization, or other similar restraints

16

When asked “why do you feel that the police are responsible for what happened”
plaintiff explained:
I feel as though they could have helped me get [Gonzalez] to [the]
hospital. Plenty of times I’ve gotten asthma before and plenty of
times [police] have helped me get to the hospital on time . . . . [But
during this incident] [officers White and Blaszcyzk] just stood
there and didn’t give [Gonzalez] no CPR, didn’t go next to her,
didn’t—I didn’t see no kind of reaction from them to say, okay,
this is a 15-year old on the floor, we need to help her. You know,
at other times I’ve seen cops help. All [officers White and
Blaszcyzk] did was [to] say everybody’s got to get away and move
back and wait [for help].
Dkt. No. 11-4 at 117:1-22.
-20-

on the individual’s freedom to act on his own behalf. DeShaney, 489 U.S. at 199–200. The
Supreme Court clarified in DeShaney that in such situations an “affirmative duty to protect arises
not from the State’s knowledge of the individual’s predicament or from its expressions of intent
to help him but from the limitation which it has imposed on his freedom to act on his own
behalf.” Id. at 200. “Restrictions on a person’s liberty to protect him-or herself from danger are
the lynchpin of DeShaney.” Morrow v. Balaski, 719 F.3d 160, 193 (3d Cir. 2013). In this case it
is undisputed that Gonzalez was unconscious and/or nonresponsive by the time of the officers’
arrival. Defendant officers could not have imposed upon her a restriction to act on her own
behalf where she was in a state of incapacity. Consequently, I find that no ‘special relationship’
was created that would require the officers to affirmatively aid Gonzalez.
2.

State-Created Danger Doctrine

Plaintiff also argues that the officers’ actions created the danger of plaintiff’s injury and
therefore that they had an affirmative duty to aid her. Dkt. No. 12 at 36-45.
The State has a duty to protect when it “acts in a way that makes a person substantially
more vulnerable to injury from another source than he or she would have been in the absence of
the state intervention.” Schieber, 320 F.3d at 416; see also Kneipp v. Tedder, 95 F.3d 1199,
1201 (3d Cir. 1996). In order to prevail on the state created danger theory, a plaintiff must
establish all of the following elements:
(1) the harm ultimately caused to the plaintiff was
foreseeable and fairly direct;
(2) the state actor acted with a degree of culpability that
shocks the conscience;
(3) a relationship between the state and the plaintiff existed
such that “the plaintiff was a foreseeable victim of the defendant’s
acts” . . . ; and
(4) 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.
-21-

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006). I find that plaintiff’s claim
fails to satisfy the second and fourth elements of the Bright test and will discuss each in turn.
In requiring that the state actor’s degree of culpability ‘shock the conscience’, the Court
in Bright modified the previous standard Kneipp laid down, which merely required that the state
actor “acted in willful disregard for the plaintiff’s safety.” Rivas v. City of Passaic, 365 F.3d
181, 194 (3d Cir. 2004), citing Kneipp 95 F.3d at 1208. Under the second prong of the statecreated danger doctrine, the standard of culpability required to shock the conscience varies with
the time that state actors have to deliberate. This is the same standard of culpability in Due
Process claims outside the state-created danger doctrine. See Rivas, 365 F.3d at 195–96;
Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir. 2006). In circumstances involving something less
than a “split-second” decision but still more urgent than an “unhurried judgment” such as those
requiring the state actor to act “in a matter of hours or minutes” which the Court terms “hurried
deliberation”, defendants must “consciously disregard[ ] a great risk of serious harm” in order for
their actions to shock the conscience. Sanford, 456 F.3d at 310.
As I previously discussed, the officers’ actions during the incident in light of the exigent
circumstances do not reveal that they consciously disregarded a great risk of serious harm to
Gonzalez. Plaintiff therefore fails to establish the second prong of the Bright state-created
danger exception.
The last prong of the Bright test requires that plaintiff’s harm would not have occurred
“but-for” defendant officers’ affirmative actions. See Ye v. United States, 484 F.3d 634, 642–43
(3d Cir. 2007). Plaintiff cites the Court of Appeals’ opinion in Rivas, 365 F.3d at 197, for the
proposition that “[t]he last element . . . of the Kneipp test asks whether the state actor used his or
her authority to create an opportunity, which otherwise would not have existed, for the specific
-22-

harm to occur.” Plaintiff erroneously interprets this element as setting forth a “create an
opportunity” test for harm. See Dkt. No. 12 at 42. To the contrary, the Court of Appeals has
reiterated on multiple occasions that the test for determining a claim asserted under the ‘statecreated danger’ doctrine is that of “but-for” causation. See Rivas, 365 F.3d at 197, noting that
the test asks “[w]ere it not for [the state’s] acts” the injury would not have occurred; Kneipp, 95
F.3d at 1209, finding it conceivable that “but for the intervention of the police” harm would not
have occurred and that a jury could find that the police intervention “greatly increased” the “risk
of injury” so as to satisfy the fourth element of the test; Kaucher v. Cnty. of Bucks, 455 F.3d
418, 432 (3d Cir. 2006), finding that “[t]here must be a direct causal relationship between the
affirmative act of the state and plaintiff’s harm” for the fourth element.
Plaintiff alleges that the officers’ actions in preventing her from transporting her daughter
to the hospital created the opportunity for decedent’s anoxic brain injury and death that would
not have otherwise occurred. Dkt. No. 12 at 45. However, the “but-for” causation requirement
is stringent and necessitates more than defendants’ alleged creation of an “opportunity for harm”;
it requires that defendants’ actions were the direct cause of plaintiff’s injury. Plaintiff has not
shown that to have been the case here. Plaintiff’s expert witness Dr. Christopher Moen testified
that Gonzalez’s death was caused by the exacerbation of her asthma by multiple factors. He
states in his expert report:
Tabitha Gonzalez’s unfortunate death occurred from a severe and
rapidly progressing exacerbation of her chronic asthma. Patients
with asthma are at risk of developing exacerbations from a wide
variety of sources. Multiple causative agents have been identified
as the sources of these exacerbations, including allergy, inhaled
gases or particular matter . . . . Such exacerbation appears to have
occurred to Tabitha Gonzalez.

-23-

Dkt. No. 12-20. Gonzalez’s death was caused by the exacerbation of her underlying medical
condition from a possible “wide variety of sources.” Id. The anoxic brain injury and death that
Gonzalez suffered was not the direct result of the officers’ actions that plaintiff claims delayed
her family from transporting her to the hospital. Therefore, I find that plaintiff also fails to
establish the last prong of the ‘state-created’ danger exception and I will grant summary
judgment in favor of defendants with respect to her claims of violations of her and decedent’s
liberty interests.
Because I find that the officers neither had a special relationship with the decedent nor
created the danger of her injury and therefore did not have an affirmative obligation to aid her, I
will not discuss whether defendant officers are entitled to qualified immunity.
C.

Cruel and Unusual Punishment

I will dismiss plaintiff’s claim that defendants violated decedent’s right to be free of cruel
and unusual punishment. “The Cruel and Unusual Punishments Clause was ‘designed to protect
those convicted of crimes’ and consequently the Clause applies ‘only after the State has
complied with the constitutional guarantees traditionally associated with criminal prosecutions.’”
Whitley v. Albers, 475 U.S. 312, 318 (1986), citing Ingraham v. Wright, 430 U.S. 651, 664
(1977). Plaintiff does not aver that decedent was ever convicted and confined by defendant
officers and her claim is therefore without merit.
I will grant summary judgment in favor of defendants with respect to Counts I and II of
plaintiff’s complaint.
II.

Count III—Monell Liability
Plaintiff claims that the City of Philadelphia had a policy and custom of “allowing police

officers to disregard” family/parental rights and individuals’ rights to seek emergency medical

-24-

treatment, and failed to train defendant officers on the same, causing her and decedent’s injuries.
Dkt. No. 6 at ¶¶ 31-38. Plaintiff also claims that the City was deliberately indifferent in failing
to adopt policies necessary to prevent constitutional violations, leading to her injuries. See Dkt.
No. 12 at 46-48. In order to impose liability on a local governmental entity for failing to act to
preserve constitutional rights, a § 1983 plaintiff must establish that: (1) she possessed a
constitutional right of which she was deprived; (2) the municipality had a policy; (3) this policy
“amounts to deliberate indifference” to the plaintiff’s constitutional right; and (4) the policy is
the “moving force behind the constitutional violation.” City of Canton, Ohio v. Harris, 489 U.S.
378, 389–91 (1989). “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty.
Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
Defendant City argues that plaintiff cannot satisfy the burden of proof as required by
Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978) and its
progeny to hold the City liable in her § 1983 action. I agree with defendant. As I have
previously discussed, plaintiff has not met her burden to establish a constitutional injury that she
suffered. Even if she had, I also find that she fails to satisfy the other elements required for a
finding of § 1983 liability under Monell.
A.

Policy, Custom or Practice

A policy is a “deliberate choice to follow a course of action . . . made from various
alternatives by the official or officials responsible for establishing final policy.” Pembaur v. City
of Cincinnati, 475 U.S. 469, 483–84 (1986), superseded in part by statute, Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1072 (1991), as recognized in Francis v. Carroll, 659
F.Supp.2d 619, 626 (D. Del. 2009). A course of conduct not expressly authorized by law

-25-

constitutes “custom” with the force of law where it is “permanent” and “well settled.” Monell,
436 U.S. at 691, citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970). To prevail
on a municipal liability claim under a theory of deliberate indifference, a plaintiff must
“‘establish a municipal custom coupled with causation—i.e., that policymakers were aware of
similar unlawful conduct in the past, but failed to take precautions against future violations, and
that this failure, at least in part, led to [plaintiff’s] injury.’” Beck v. City of Pittsburgh, 89 F.3d
966, 972 (3d Cir. 1996), quoting Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990); see
also id., noting that the ‘deliberate indifference’ standard is adopted by courts in policy and
custom contexts.
Plaintiff fails to establish the existence of a policy or custom of the City. Plaintiff alleges
that the City has a practice of “allowing police officers to disregard” family/parental and
individual rights to seek medical treatment that is “so widespread that it is a de facto policy of
the City of Philadelphia, thereby constituting its method of operation and force of law.” Dkt. No.
6 at ¶ 36. However, plaintiff fails to support her allegations with any facts establishing the
existence of such a policy or custom. Plaintiff also fails to present any evidence regarding a
pattern of alleged similar violations in the past, or the City’s awareness of such violations that
would put it on constructive notice to take future precautions. In the absence of such notice, the
“deliberate indifference” necessary to trigger municipal liability is absent. See Bryan Cnty., 520
U.S. at 407.
B.

Failure to Adopt a Policy

A failure to adopt a policy can amount to deliberate indifference towards an individual’s
constitutional rights. See Carter v. City of Phila., 181 F.3d 339, 357 n.61 (3d Cir. 1999), citing
Canton, 489 U.S. at 391. ‘Deliberate indifference’ requires proof that a municipal actor

-26-

“disregarded a known or obvious consequence of his action.” Bryan Cnty., 520 U.S. at 410.
When injury is caused by such indifference, liability may arise. Carter, 181 F.3d at 357 n.61.
Plaintiff points to Directive 63, the City’s Memorandum 99-2 and the deposition of
Sergeant Paul Starrs to support her claim that the City failed to adopt policies on the
responsibility of police in transporting individuals suffering from a medical emergency to the
hospital. See Dkt. No. 12 at 45-48. Directive 63 specifies that persons with a “serious
penetrating wound or a blunt trauma to the body will be transported to the nearest accredited
trauma center.” Dkt. No. 12-23. The Directive was not applicable to Gonzalez because she had
neither a penetrating wound nor blunt trauma to the head. See Dkt. No. 11-7 at 22:6-20.
Plaintiff adduces expert testimony in support of her allegation that Directive 63 is problematic
because its inapplicability to situations such as Gonzalez’s leads to the violation of individuals’
rights. Dkt. No. 12-25. Plaintiff also points to Starrs’ testimony he was “not aware of any
policies or procedures” “[o]r even training” in regard to the parents’ right to the care, custody,
control and medical treatment of their children” to support her argument that the City failed to
adopt appropriate policies. Id. at 28:15-23; 16:1-6.
Here plaintiff again does not support her claim with any facts suggesting that City
policymakers were aware of similar allegedly unlawful conduct in the past but failed to take
precautions against future violations, which directly led to her injury. She thus fails to establish
the requisite deliberate indifference. See Bryan Cnty., 520 U.S. at 410; see also Beck, 89 F.3d at
972. In addition, plaintiff fails to show that her claimed injuries were actually caused by the
City’s failure to adopt a policy. See Carter, 181 F.3d at 357 n.61., citing Canton, 489 U.S. at
391. As the Court of Appeals has pointed out, “it is not enough for a plaintiff to argue that the
constitutionally cognizable injury would not have occurred if [the defendant] had done more than

-27-

he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). The plaintiff must
identify a “specific defalcation” that caused the “ultimate injury.” Id. Here plaintiff simply
asserts that the City failed to adopt “appropriate policies,” which produced the claimed
constitutional violations. Dkt. No. at 48. This is insufficient to establish the “close causal
relationship” required for municipal liability. See Sample, 885 F.2d at 1118.
C.

Failure to Train

A municipality may be held liable under § 1983 if its failure to train its employees results
in constitutional violations. Canton, 489 U.S. at 379. “A municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turn on a failure to train.” Connick v.
Thompson, 131 S.Ct. 1350, 1359 (2011). The inadequacy of training may serve as a basis for
municipal liability “only where the failure to train amounts to deliberate indifference to the rights
of persons with whom the police come into contact.” Id. at 388. “Failure to train . . . municipal
employees can ordinarily be considered deliberate indifference only where the failure has caused
a pattern of violations.” Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (per
curiam), citing Bryan Cnty., 520 U.S. at 408–09. Finally, for liability to attach in this
circumstance “the identified deficiency in the training program must be closely related to the
ultimate injury.” Canton, 489 U.S. at 391.
In this case, plaintiff adduces no evidence of prior incidents that would suggest that the
City had actual or constructive notice of incidents of medical emergencies where police
disregarded the rights of those with whom they came into contact. Connick, 131 S.Ct. at 1354.
In the absence of evidence suggesting a pattern of similar violations, a single violation in “a
narrow range of circumstances” may suffice only if it is a “highly predictable consequence” of a
city’s decision not to train officers. See id. at 1361, citing Bryan Cnty., 520 U.S. at 397, 409.

-28-

The Supreme Court in Canton posited a hypothetical example of single-incident liability
being that of a city that deploys its armed police force into the public to capture fleeing felons
without training them on the constitutional limitation on the use of deadly force. Canton, 489
U.S. at 390, n.10. In Connick, the Supreme Court clarified that the “obvious need” for specific
legal training in the Canton hypothetical arose because “[t]here is no reason to assume that police
academy applicants are familiar with the constitutional constraints on the use of deadly force”
and “in the absence of training, there is no way for novice officers to obtain the legal knowledge
they require.” Connick, 131 S.Ct. at 1361. The Supreme Court clearly stated that “[t]he Canton
hypothetical assumes that the armed police officers have no knowledge at all of the constitutional
limits on the use of deadly force.” Id. at 1363.
This case differs from the Canton hypothetical in that City officers are trained in the
Police Academy on CPR, first aid and the recognition of life-threatening emergencies.17 Dkt.
No. 11-7 at 14:19-18:5. The officers here are presumed to be familiar with the procedures and
actions available to address a medical emergency. “[S]howing merely that additional training
would have been helpful in making difficult decisions does not establish municipal liability.”
Connick, 131 S.Ct. at 1361. While additional training may have aided defendant officers in
providing medical assistance to Gonzalez, its absence is insufficient to establish municipal
liability. See Canton, 489 U.S. at 391 noting that it will not suffice to prove “that an injury or
accident could have been avoided if an [employee] had had better or more training, sufficient to
equip him to avoid the particular injury-causing conduct.”

17

Starrs testified that while at the Police Academy, cadets are trained in a seven or
eight-day course on CPR and first aid, and again every two years in CPR and every three years in
first aid. Dkt. No. 11-7 at 14:19-18:5.
-29-

I find that this case is not a case of single-incident liability that the Supreme Court
posited in Canton as a possible exception to prove deliberate indifference to train in the absence
of a pattern of violations.
Plaintiff has not met her burden to establish the City’s liability under Monell. I will grant
summary judgment in favor of defendants with respect to Count III of plaintiff’s complaint.
III.

Count IV—False Imprisonment
Plaintiff’s complaint also asserts a claim for false imprisonment. Defendant’s motion for

summary judgment clearly seeks dismissal of all of plaintiff’s claims, although it does not
separately address her claim for false imprisonment. See Dkt. No. 11 at 2, 3. To establish a
claim for false imprisonment under Pennsylvania law, plaintiff must show that: (1) one acts
intending to confine another with boundaries fixed by the actor; (2) such act results in such
confinement of the other, and; (3) the other is conscious of the confinement or is harmed by it.
Pennoyer v. Marriott Hotel Servs., Inc., 324 F. Supp. 2d 614, 619–20 (E.D. Pa. 2004) citing
Gagliardi v. Lynn, 285 A.2d 109, 111 n.2 (Pa. 1971). The confinement must be complete within
the boundaries fixed by the defendant. Id. If there is a known safe means of escape involving
only a slight inconvenience, there is no false imprisonment. Id. There must also be verbal threat
to effect the confinement unless physical force or barriers are used. Id. Finally, plaintiff must
make some request to leave which is denied by the defendant. See also Park v. Veasie, No. 3:09CV-2177, 2012 WL 1382222, at *16 (M.D. Pa. Apr. 20, 2012).
Plaintiff claims that she was prevented from accessing the area where her daughter lay.
The obvious import of this allegation is that plaintiff was free to go anywhere else. Her
testimony that she was able to “move[ ] away” from the officers indicates that she was not
confined within any demarcated boundaries allegedly set by the police officer. Dkt. No. 11-4 at

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118:10-14. Therefore, I do not find that plaintiff was falsely imprisoned. Similarly, Gonzalez
could not have been falsely imprisoned when unconscious and incapable of perceiving any
confinement or of making a request to leave of the police officers.
Accordingly, I will grant summary judgment to defendants with respect to Count IV of
plaintiff’s complaint.
An appropriate Order follows.

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