HENDERSON v. THE CITY OF PHILADELPHIA
MEMORANDUM AND/OR OPINION RE: DEFENDANT MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 7/23/2012. 7/24/2012 ENTERED AND COPIES E-MAILED.(kk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
as administratrix of the estate
of Yvette Henderson, deceased
CITY OF PHILADELPHIA
JULY 23, 2012
Plaintiff Dominique Henderson as administratrix of the estate of Yvette Henderson and in
her own right as daughter of the decedent filed this action against defendant City of Philadelphia
seeking damages for claims arising out of her mother’s death. Plaintiff asserts claims under the
Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat. § 8301, the Pennsylvania Survival Act, 42
Pa. Cons. Stat. § 8302, and 42 U.S.C. § 1983. Now before me is the City’s motion to dismiss
plaintiff’s amended complaint. For the reasons that follow I will grant the City’s motion.
The facts of the instant case viewed in the light most favorable to plaintiff are as follows.
On October 31, 2010, emergency medical technicians employed by the City of Philadelphia came
to 2531 West Harold Street, Philadelphia, PA in response to a 911 call. Am. Compl. ¶ 10.
Plaintiff’s mother was experiencing “difficulty breathing.” Id. at ¶¶ 1, 10.1 While attempting to
carry her out of the home “in and/or on a bag” the EMTs dropped her on her head. Id. at ¶ 10-11.
Plaintiff’s mother was then taken to Temple University Hospital where she died of a subdural
hematoma. Id. at ¶ 2, 13. Plaintiff avers that when the EMTs dropped her mother they
Paragraph 15 appears to include an allegation that plaintiff’s mother had been shot
but there is no allegation that this is why the ambulance was summoned.
aggravated her mother’s “precarious condition,” further causing pain and suffering and ultimately
her mother’s death at 11:45 am. Id. at ¶¶ 12-14. Plaintiff contends that the EMTs:
(a) fail[ed] to properly and safely transport the Plaintiff’s decedent;
(b) fail[ed] to have adequate form of transport for Plaintiff’s
decedent; (c) fail[ed] to properly secure Plaintiff’s decedent; (d)
fail[ed] to properly train its personnel in the securing and transport
of patients; (e) fail[ed] to properly supervise the transport of
patients; (f) fail[ed] to promptly respond to a clearly enunciated
medical emergency; . . . (h) fail[ed] to perform proper tests, review
the patient’s history and to determine appropriate care; (i) fail[ed]
to perform a complete and thorough evaluation of the patient’s
condition prior to transport; (j) fail[ed] to perform the procedures
properly and in a competent manner so as to prevent the plaintiff’s
decedent from falling to the ground; (k) fail[ed] to have an
adequate amount of personnel care for and transport the Plaintiff’s
decedent; (l) fail[ed] to properly diagnose the nature and/or
seriousness of Plaintiff’s [decedent’s] problem and act in
accordance with reasonable standards of care; (m) [held] out
expertise which induced Plaintiff to believe that adequate and/or
proper care would be provided when, in fact, adequate and/or
proper and/or reasonable care were not available or were not
provided; (n) fail[ed] to maintain and keep adequate records,
reports, and/or notes so as to allow proper treatment and/or followup by its employees, agents and/or servants.
Id. at ¶ 17.
Plaintiff seeks recovery
including, but not limited to damages for all hospital, medical,
funeral burial and estate administration expenses, incurred, loss of
support and contribution which the family would have received
from the decedent from the time of her death for the duration of
[her] work life expectancy; compensation for the pecuniary value
of the services, society, and comfort [she] would have given to her
children, mother, father, step-mother, sisters and remaining family
had [she] lived; compensation for the loss of services the decedent
would have contributed to all family listed above and also for the
net amount of money the decedent would have earned from the
date of her death and would have earned between the date and the
end of her work life expectancy; compensation for the mental and
physical pain and suffering and inconvenience the decedent
endured from the moment of [her] injury to the moment of her
Id. at ¶ 5.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations,” though plaintiff’s obligation to state the grounds of entitlement to relief
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all of the allegations in the complaint are true (even if doubtful in fact).” Id. (citations
omitted). The complaint must state “‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary element.” Wilkerson v. New Media Tech.
Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The
Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009),
“conclusory or ‘bare-bones’ allegations will no longer survive a motion to dismiss: ‘threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.’ To prevent dismissal, all civil complaints must now set out ‘sufficient factual matter’ to
show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for
reviewing motions to dismiss in light of Twombly and Iqbal: “First, the factual and legal
elements of a claim should be separated. The District Court must accept all of the complaint’s
well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’” Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The
Court explained, “a complaint must do more than allege the plaintiff’s entitlement to relief. A
complaint has to ‘show’ such an entitlement with its facts.” Id., citing Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). “Where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it
has not ‘show[n]’–‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1949.
Wrongful Death and Survival Act Claims
Plaintiff’s amended complaint sets forth a wrongful death claim on behalf of herself and
her mother’s mother. Am. Compl. ¶ 19. It also sets forth a claim pursuant to the Survival Act on
behalf of her mother’s estate. Id. at ¶ 27. These “claims are not substantive causes of action;
rather, they provide a means of recovery for unlawful conduct that results in death.” Sullivan v.
Warminster Twp., No. 07-4447, 2010 WL 2164520, at *6 (E.D. Pa. May 27, 2010). “[W]rongful
death and survival actions sound in tort and are governed by the [Pennsylvania Political
Subdivision] Tort Claims Act.” Bornstad ex rel. Estate of Bornstad v. Honey Brook Twp., No.
03-3822, 2005 WL 2212359, at *22, n.53 (E.D. Pa. Sept. 9, 2005). I will dismiss plaintiff’s
wrongful death and survival claims because they do not fall within one of the exceptions to the
City’s immunity from certain state law claims provided by the Tort Claims Act. 42 Pa. Cons.
Stat. §§ 8541 et seq.
The Tort Claims Act states in relevant part “[e]xcept as otherwise provided . . . no local
agency shall be liable for any damages on account of any injury to a person or property caused by
any act of the local agency or an employee thereof or any other person.” 42 Pa. Cons. Stat. §
8541. Exceptions to this immunity include certain statutorily enumerated negligence claims, i.e.:
vehicle liability; the care, custody and control of personal property; the care, custody and control
of real property; trees; traffic controls and street lighting; utility service facilities; streets;
sidewalks; and the care, custody and control of animals. 42 Pa. Cons. Stat. § 8542(b). In order
for plaintiff to recover on her wrongful death and/or survival claims, her amended complaint
must allege: (1) that the decedent’s injury was “caused by the negligence of the local agency or
its employees” and (2) that her claims “fall within one of the eight exceptions listed in § 8542.”
Robey v. Chester Cnty, 946 F. Supp. 333, 338 (E.D. Pa. 1996) The facts alleged in plaintiff’s
amended complaint do not fall under one of these exceptions.
A motion to dismiss will typically be granted with leave to amend “unless [amendment]
would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002). I will not grant plaintiff leave to amend her wrongful death and survival act claims
because her allegations regarding the EMTs’ actions cannot be amended to establish one of the
exceptions to the Tort Claims Act. See Torres v. City of Allentown, No. 07-1934, 2008 WL
2600314, at * 6 (E.D. Pa. June 30, 2008) (granting motion to dismiss under Torts Claims Act
without leave to amend where conduct alleged did not fall within an enumerated exception).
§ 1983 Claim
I will dismiss plaintiff’s § 1983 claim because the City is not constitutionally obligated to
provide rescue services or to ensure the competency of rescue services that it has chosen to
provide and because plaintiff has not pled that at the time of the incident in question the EMTs
were acting pursuant to a policy or custom of the City. To state a claim against the City under §
1983, plaintiff must plead both that the EMTs’ actions deprived her mother of a right, privilege,
or immunity secured by the Constitution and laws of the United States and that the EMTs were
acting pursuant to a law, policy or custom of the City. § 42 U.S.C. § 1983.2
First, “[t]o make out a prima facie case under § 1983, the plaintiff must demonstrate that
a person, acting under color of law, deprived [her mother] of a federal right.’” Berg v. Cnty. of
Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). Even if all of the allegations set forth in plaintiff’s
amended complaint are taken as true, the facts alleged do not amount to a deprivation of a
constitutional right. The Due Process Clause “forbids the State itself to deprive individuals of
life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended
to impose an affirmative obligation on the State to ensure that those interests do not come to
harm through other means.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,
195 (1989). In Brown v. Pennsylvania, the Court of Appeals looked to the Supreme Court’s
decision in Deshaney when it refused to impose liability on the City of Philadelphia for the
actions of EMTs employed by the City in their attempt to rescue a choking infant. Brown v. Pa.
Dep’t of Health Emergency Med. Servs. Training. Inst, 318 F.3d 473, 478 (3d Cir. 2003). The
Court held that “there is no federal constitutional right to rescue services, competent or
otherwise. Moreover, because the Due Process Clause does not require the State to provide
rescue services, courts cannot interpret that clause so as to place an affirmative obligation on the
§ 1983 states: “[e]very person who, under color of any statute ordinance
regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress.”
State to provide competent rescue services if it chooses to provide them.” Id. at 476. Further,
“the Due Process Clause is not implicated by an official’s negligent act.” Id. at 479, citing
Daniels v. Williams, 474 U.S. 327, 328 (1986). When applied to the facts of the instant case, the
holding of the Court in Brown appears to preclude plaintiff from making out a claim for recovery
under § 1983 because her mother did not have a constitutional right to receive competent
emergency medical services.
The Court of Appeals, however, recognizes two exceptions to the general rule adopted in
DeShaney: (1) the special relationship exception applied “when the State by the affirmative
exercise of its power so restrains an individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human needs,” and (2) the statecreated danger exception applied “when the state, through some affirmative conduct, places the
individual in a position of danger.” Brown, 318 F.3d at 478; citing DeShaney, 489 U.S. at 200.
The “special relationship” exception does not apply here because the amended complaint does
not allege that plaintiff’s mother was at any time under the custody of the City. See Brown, 318
F.3d at 481. The state-created danger exception, however, requires further analysis. The Court
of Appeals has held:
[T]hat cases predicating liability on a state-created danger theory
have four common elements: (1) the harm ultimately caused was
foreseeable and fairly direct; (2) the state actor[s] acted in willful
disregard for the safety of the plaintiff; (3) there existed some
relationship between the state and the plaintiff; and (4) the state
actors used their authority to create an opportunity that otherwise
would not have existed [to cause harm].
Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). In cases where the state actor is acting
with urgency a “shocks the conscience” standard rather than a “willful disregard” standard
applies. Brown, 318 F.3d at 480 (holding that the “‘conscience shocking’ standard applies to the
actions of emergency medical personnel–who likewise have little time for reflection, typically
making decisions in haste and under pressure”). Plaintiff’s amended complaint does not allege
that the EMTs were acting willfully, intentionally or in a conscience shocking manner. Because
plaintiff’s allegations do not support a finding that the state-created danger exception should
apply she has not sufficiently pled a deprivation of her mother’s constitutional rights for liability
to attach under § 1983.
Second, even if plaintiff could amend her amended complaint to allege a sufficient
deprivation of her rights, she still must allege that the EMTs at the time of the incident were
acting in accordance with a policy or custom of the City. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978) (“[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.”). Liability exists “when execution of a government’s
policy or custom . . . inflicts the injury.” Id. Moreover, “[a] plaintiff bears the additional burden
of proving that the municipal practice was the proximate cause of the injuries suffered. To
establish the necessary causation, a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative
link’ between the municipality’s custom and the specific deprivation of constitutional rights at
issue.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Rather than allege that a city policy inflicted the injury set forth in the amended
complaint, plaintiff instead claims that the injury at issue arose from the EMTs’ “refus[al] to
enforce the rules, policies and regulations of the Commonwealth and City of Philadelphia.”
Compl. at ¶ 32. Absent allegations that the City’s EMTs had a custom of not following the
City’s rules and regulations and that such custom was a proximate cause of plaintiff’s mother’s
injury, there can be no basis for liability under Monell.
I will grant plaintiff leave to amend her § 1983 claim to the extent that she can allege
sufficient facts to support a claim that the EMTs’ conduct “shocks the conscience” and that a
City policy or custom caused the deprivation of her mother’s constitutional rights.3
To the extent that plaintiff is able to amend her complaint to set forth a viable
claim under § 1983, she may not reassert her claim for punitive damages. See City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (finding “that considerations of history and policy
do not support exposing a municipality to punitive damages for the bad-faith actions of its
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